Terms and Conditions of Business
These are the entire Terms and Conditions of supply for Evolt Pty Ltd t/as Evolt ABN 83 112 123 529 and associated, related, subsidiary and parent companies, successors and assigns (“the Supplier”).
1. DEFINITIONS AND INTERPRETATION
Additional Expenses means any duties, fees, taxes (including GST), outgoings and expenses incurred in supplying the Goods and Services, including transport and freight charges, delivery fees, merchant fees and surcharges, permit and licence fees, installation and commissioning costs, toll or other road charges, storage fees and environmental levies.
Credit Account means the approved commercial account You have with Us to purchase Goods and Services on credit pursuant to these Terms.
Customer means any person, firm or company placing an Order with Us for the purchase of Goods and Services pursuant to these Terms, including Your associated, related, subsidiary and parent companies, successors, assigns and, where applicable, any trustee, executor or external administrator (all of which are referred to as “You” and “Your”).
Due Date means the date listed on Our invoice for Your payment of the Goods, Services and Additional Expenses, or if no Due Date is listed, within 10 business days of the date of Our invoice.
Equipment means the machinery, equipment and tools that We use to supply the Services.
Force Majeure means something outside a party’s reasonable control, including war, strikes, lockouts, epidemics and pandemics, industrial disputes or civil unrest, government restrictions or intervention, transport delays, fire, act of God, storm or flood, theft and vandalism.
Goods means any goods, products and merchandise supplied by Us to You pursuant to any Quote, Order and/or these Terms, including residential, commercial, industrial, emergency and linear LED lighting products.
Insolvency Event means any circumstances where We reasonably believe that You are unable to pay Your debts as and when they fall due or You have suffered a material adverse change in Your financial circumstances.
Intellectual Property means Our designs, works, tools and materials in which We have intellectual property rights, including any text, literary work, composition, artwork, image, graphic, sound clip, video, animation, design, plan, specification, software, circuit layout, invention, compilation, trademark, logo, get up, slogan, database, trade secret or domain name.
Loss means any claim, demand, cause of action, loss and damage, liability, costs (including legal costs on an indemnity basis), expenses (including any GST payable) and is not limited by the Losses which were contemplated by the parties at the time of entering into these Terms.
Order means a request to purchase Goods and Services placed by You.
- (a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
- (b) any amendment made at any time to any other legislation as a consequence of the PPS Act.
Quote means Our written description and price of the Goods and Services to be supplied to You, which is valid for 30 days.
Services means all services provided by Us to You pursuant to any Quote, Order and these Terms, including commissioning and installing Goods.
Site means the location where You request Goods and Services to be supplied.
Supplier means the entity or entities specified in these Terms as supplying the Goods and Services to You and includes any associated, related, subsidiary and parent companies, successors and assigns (all of which are referred to as “Us”, “We” and “Our”). Website means www.evolt.com.au as redirected from time to time.
In these Terms:
- (a) a reference to ‘these Terms’ means these Terms and Conditions of supply;
- (b) a Business Day is any day except Saturday, Sunday or a public holiday in the location where the Goods and Services are being supplied;
- (c) Joint and several liability applies to two or more Customers entering into these Terms;
- (d) writing includes by email and communication through Our website;
- (e) a reference to a clause or paragraph is a reference to these Terms;
- (f) a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
- (g) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- (h) headings and any explanatory notes are for ease of reference only and do not affect the meaning or interpretation of these Terms;
- (i) a reference to ‘including’ does not convey any limitation and should be interpreted as if the word ‘without limitation’ also appear; and
- (j) if these Terms require something to be done on a day that is not a Business Day (for example, payment or notice), then it must be done on the preceding Business Day.
Things You Need to Know About these Terms & Conditions
2. OUR AGREEMENT
- (a) These are the entire terms and conditions for all Goods and Services that We supply to You. Except where the parties agree otherwise (which must be by a duly authorised officer and in writing) or where We have listed special terms and conditions on a Quote or Order, these Terms apply notwithstanding any provisions to the contrary appearing on another document.
- (b) You warrant that You have obtained all the necessary authorisations to enter into and perform the contract created by these Terms. You warrant that any person signing these Terms or giving Us instructions about the Goods and Services has Your authority and power to do so.
- (c) You accept these Terms by signing and returning a copy of them to Us or by other conduct, including verbal acceptance, placing an Order, or by instructing Us to supply the Goods and Services.
- (d) You engage Us to provide Goods and Services strictly as an independent contractor. We are not Your employee, partner, agent, joint venture or franchisee, nor is any other person working for Us.
- (e) These Terms are interpreted according to the laws of the State or Territory as We may determine in Our sole discretion. Proceedings by either party may be conducted in the State or Territory that We determine in Our sole discretion. If We do not make any determination, You consent to any proceedings being conducted in a Court of New South Wales and applying the laws of that State.
3. CHANGES AND UPDATES TO THESE TERMS
- (a) From time-to-time, and at any time, We may update or vary these Terms. A copy of current Terms can be found on Our website or by requesting a copy from Us.
- (b) We will provide You with 7 days written notice of any updated Terms, after which time any updated or varied Terms will apply to all supply of Goods and Services.
- (c) You must notify Us in writing of any material change to Your organisation, including a change of director, bank account details or change of address.
- (d) We may assign and transfer Our title, estate, interest, benefit, rights, duties and obligations in these Terms to any person, provided that the assignee agrees to assume any of Our obligations owed to You in these Terms.
- (e) You must not assign, transfer, charge, encumber or otherwise deal with any of Your rights and obligations under these Terms, or attempt or purport to do so, without Our prior written consent.
Ordering and Supplying Goods and Services
4. PRICES, QUOTATIONS AND ORDERS
- (a) We may issue a Quote to You, but a Quote is not an Order or an offer for Us to supply Goods and Services to You.
- (b) We may vary or cancel any Quote before an Order is accepted.
- (c) You may purchase Goods and Services by placing an Order with Us verbally or in writing. You warrant that the person who places the Order is authorised by You to do so.
- (d) We may accept or decline any Order by notifying You in writing or by supplying the Goods and Services.
- (e) You cannot cancel or vary an Order after We have accepted it without Our written consent. Our consent will not be unreasonably withheld, however We cannot accept any cancellation if an Order is in transport or an Order has been delivered.
- (f) If You do not proceed with a Quote or other tender submitted to You, You must return all drawings, plans, specifications and other documents used to submit such Quote or other tender within 7 days of the Quote or tender expiring or at We reasonably require.
- (g) You must pay Us for any Loss that We suffer from Your Order being cancelled or varied, even if We have consented to the cancellation or variation.
- (h) Prices specified on any of Our price lists are subject to change at any time and You will be quoted or charged pursuant to Our current price list.
- (i) Unless the parties otherwise agree in writing, the price You must pay for Goods and Services is specified in Our invoice and may include Additional Expenses.
- (j) If any Goods in Your Order become unavailable prior to delivery, We will refund You for the Goods which have become unavailable.
- (k) We do not provide price protection or refunds in the event of a price reduction or promotional offering.
- (a) Specifications for the Goods and Services supplied under these Terms are contained in the Orders You submit from time-to-time.
- (b) Our Services are limited to the particular scope of work, tasks and activities that We have agreed to carry out and the specific circumstances that apply in the course of Our Services.
- (c) The Services are supplied to You with all due skill and care and You authorise Us to carry out the Services.
- (d) To facilitate supply of the Services, You must:
- i) Provide a safe Site for Us to supply the Services, including compliance with occupational health and safety legislation and fully insured for Our (or Our agents, employees or contractors) safe use;
- ii) Provide accurate and complete instructions, specifications, Site measurements and information that We reasonably require to provide the Services; and
- iii) Facilitate full access to the Site and all resources that are reasonably necessary for Us to supply the Services, including plans, designs, plans, files, records, information technology systems, premises, facilities, people with the relevant skills and experiences, and third parties where applicable.
- (e) We reserve the right to determine the final installation or commission method of the Goods as may be structurally necessary.
- (a) Unless otherwise agreed between the parties in writing, We will deliver the Goods to You. The method of delivering Goods and Services is at Our sole discretion, including delivery by instalments.
- (b) At any time, We may appoint an agent to perform Our delivery obligations of these Terms.
- (c) You authorise Us to:
- i) supply Goods and Services at the Site nominated by You;
- ii) leave and/or install Goods at the Site, whether or not any person is there to accept delivery.
- (d) You must provide a suitable and safe area for Us to deliver the Goods and Services, including a Site that complies with all applicable occupational health and safety legislation for Our safe use (including Our agents, employees or contractors).
- (e) All delivery times indicated by Us are estimates only. Delivery times are subject to Goods and Services being available, Our reasonable ability to deliver on that date, and receiving co-operation from You and other organisations to supply the Goods and Services.
- (f) We will endeavour to deliver Goods and Services in accordance with any delivery instructions You give Us and by the time You need, but if We fail to deliver within a specified time or We fail to deliver any instalment, You are not allowed to cancel Your Order, refuse to accept delivery, refuse to pay for what We have supplied.
- (g) We are not obliged to obtain a signed receipt, delivery docket or other acknowledgement that the Goods and Services have been delivered. But if a signed receipt, delivery docket or other acknowledgement is obtained, You agree that document is conclusive evidence of Your acceptance that the Goods and Services have been delivered (including any delivery notice provided by Our agent).
- (h) Delivery occurs when Goods are delivered to Your Site, or when Services are completed at Your Site. When delivery occurs Our supply obligations are discharged.
- (i) You agree to inspect and examine Goods immediately on delivery.
- (j) You must pay all Additional Expenses We incur to deliver the Goods and Services, including due to:
- i) Any delay in delivery of the Goods and Services which is caused by You, the conditions of the Site or the nature of the Goods and Services being delivered;
- ii) Any unexpected labour, occupational health and safety requirements, permits, licences or additional costs in connection with delivery.
How We Manage Certain Risks
- (a) Legal ownership of Goods does not pass to You until We have received all amounts owing by You on any account whatsoever with Us, including any Additional Expenses.
- (b) Legal ownership of any Equipment used to supply the Services remains with Us at all times and never passes to You.
- (c) Until legal ownership of the Goods passes to You, or where ownership of Equipment never passes to You, You hold all Goods and Equipment for Us as bailee.
- (d) You must store the Goods and Equipment separately from Your own or anyone else’s Goods and Equipment. The way You store the Goods and Equipment must clearly identify the Goods and Equipment as Our property and prevent the Goods and Equipment from being damaged or spoiled.
- (e) You may resell any Goods sold before legal ownership passes to You, provided that You:
- i) Resell the Goods to a third party in the ordinary course of business;
- ii) Act in any transaction as Our fiduciary agent;
- iii) Hold the proceeds of sale of Goods on trust for Us and in a separate account with separate records;
- iv) Account to Us for those proceeds or any other payment made by a third party for any sale of the Goods; and
- v) Allow us to inspect any records of any payments received for Goods.
- (f) You must not sell or deal with Our Equipment in any way.
8. HOW RISK PASSES TO YOU
- (a) All risk and responsibility in the Goods and Services passes to You on delivery.
- (b) We may repossess the Goods wherever they are located if:
- i) You attempt to cancel Your Order while the Goods are in Your possession;
- ii) You do not pay for Goods and Services by the Due Date;
- iii) You suffer an Insolvency Event; or
- iv) We have reasonable grounds to believe that You have breached these Terms.
- (c) You irrevocably grant Us (including Our agents or any other nominated representative) an unrestricted right and licence to enter any Site or premises occupied by You without notice for the purpose of identifying and repossessing the Goods and Equipment. We reserve these repossession rights without being liable to You or any other third party in any way.
9. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
- (a) The supply of Goods and Services to You does not constitute a transfer of any Intellectual Property in the Goods or Services (either in whole or in part). We retain ownership of Our Intellectual Property at all times, including any drawings, designs, plans, specifications or other documents submitted to You with any Quote.
- (b) You must not do anything which would infringe Our Intellectual Property rights in the Goods, including de-compilation, disassembly or re-engineering of Our Intellectual Property.
- (c) You must keep confidential any drawings, designs, plans, specifications or other documents submitted to You with any Quote (to the extent that those things are not already in the public domain).
How We Get Paid
- (a) Unless the parties agree differently in writing, You must pay for Goods, Services and Additional Expenses on or before the Due Date.
- (b) All amounts payable by You for Goods, Services and Additional Expenses are inclusive of GST (unless expressly stated otherwise). You must pay Us GST imposed on any supply of Goods, Services and Additional Expenses.
- (c) At Our discretion, We may require payment (including part payment or a deposit) for the Goods and Services before fulfilling an Order.
- (d) Invoices for the supply of Goods and Services will be issued to You at Our discretion.
- (e) Payment must be made in a method approved by us. There may be Additional Expenses associated with Your chosen payment method, such as reasonable surcharges and a reasonable fee if any payment is dishonoured, not processable, or returned by Your financial provider;
- (f) We may apply any payments You make to Us towards any debt You owe Us. We may also set-off any credit amount that We owe to You against any debt You owe Us.
- (g) We may credit any payments received from You against any interest charges and costs first, and all such charges will be payable on demand.
- (h) If You believe You have a set-off or claim against Us (including any query, dispute or claim), You cannot withhold any payment on that basis without Our prior written consent.
- (i) If You do not pay for Goods and Services by the Due Date, We may:
- i) Charge You interest on all overdue accounts a rate which is 4% higher than the cash rate last published by the Reserve Bank of Australia as at the Due Date, calculated and payable daily and compounded from the due date until the invoice is paid in full. The parties agree that this interest charge is not a penalty, but a true measure of damages incurred by Us;
- ii) Require You to pay upfront for any further Goods and Services;
- iii) Suspend or cease supply of Goods and Services to You;
- iv) Demand Your immediate payment of all outstanding monies;
- vi) Preclude You from participating in any special deals, discounts, bonus payments redemptions, rebates and all other incentive programs until Your account is no longer overdue.
11. CREDIT ACCOUNTS
- (a) You may apply for a Credit Account with Us to purchase Goods and Services. We have no obligation to provide or continue to provide credit facilities to You and You are not entitled to credit facilities until You receive an approved Credit Account with Us.
- (b) A Credit Account must only be used by You, which means it cannot be assigned, transferred or made available for use by any other entity or person (including Your successors or assigns) without Our prior written consent.
- (c) Any credit limit placed on Your Credit Account is for Our administrative purposes only and does not constitute a term of this or any other contract You have with Us.
- (d) If You exceed the credit limit placed on Your Credit Account, We may require You to make immediate payment to return Your Credit Account to within the credit limit before placing any further Orders.
- (e) You authorise Us to debit Your Credit Account with the price of Goods and Services supplied to You and all other Additional Expenses (including interest payable under these Terms).
- (f) Time is of the essence in relation to this section. This section survives expiry or termination of these Terms.
How We Take Security for Payment
12. SECURITY OVER REAL ESTATE
- (a) To secure payment of all monies You owe Us for the supply of Goods and Services, You:
- i) Charge all of Your interest in real and personal property (including all property acquired after the date of these Terms) in favour of Us, whether or not a demand has been made on You (“Charge”). This Charge constitutes a General Security Agreement for the purposes of the PPSA;
- ii) Authorise and consent to Us taking all actions necessary to give effect to the Charge, including the lodgement of a caveat upon any title of Your real property, whether held in Your own right or as trustee of any trust, or any other security document; and
- iii) Agree to deliver to Us within 7 days of written demand a Memorandum of Mortgage in registrable form. You agree that any amount payable to Us payable on demand incorporating the covenants contained in Memorandum No. Q860000 registered at the Land Registry Services New South Wales as amended to comply with and reflect any appropriate laws in the jurisdiction(s) where You have any beneficial interest in real and personal property and as amended appropriately to comply with any formal requirements of registration.
- iv) Irrevocably appoint Us and any person nominated by Us severally as Your attorney, with power to execute, sign and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) such caveat, mortgage or other security document to effect the Charge granted under this part.
13. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)
- (a) You acknowledge and agree that these Terms constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and create a security interest in the Goods supplied by Us from time to time and any proceeds of the supply of the Goods to secure payment for the Goods (“Security Interest”).
- (b) Each supply of Goods by Us under these Terms is subject to the Security Agreement for the purposes of the PPSA.
- (c) We may lodge a financing statement on the Personal Property Securities Register (“PPSR”) in respect of the Security Interest in the Goods and in the proceeds of supply of the Goods, including as a purchase money security interest (as that term is defined in the PPSA) (“PMSI”), pursuant to these Terms.
- (d) You must do all things, provide all information and sign all documents necessary and reasonably required to enable Us to acquire a perfected Security Interest in the Goods, including for the purpose of:
- i) Ensuring that any Security Interest created under, or provided for, by these Terms:
- a. Attaches to the Goods that are intended to be covered by that Security Interest; and
- b. Is enforceable, perfected and otherwise effective; and
- c. Has the priority required by Us.
- ii) Enabling Us to prepare and register a financing statement or financing change statement;
- iii) Enabling Us to register a PMSI pursuant to the PPSA; and
- iv) Enabling Us to exercise and maintain any of the Our rights or powers in connection with any such Security Interest.
- i) Ensuring that any Security Interest created under, or provided for, by these Terms:
- (e) If You dispose of the Goods sold to You, You must:
- i) Immediately pay any proceeds to Us in reduction of all amounts that You owe to Us, which We may apply towards amounts You owe to Us in such order as specified by subsection 14(6)(c) of the PPSA, unless otherwise specified by Us in writing; and
- ii) Not allow any other charge or security interest to exist over those proceeds without Our written consent if that security interest could rank ahead of Our Security Interest.
- (f) If a higher-priority security interest does arise in the Goods sold to You despite Your obligations under this section, You must:
- i) Ensure that You receive cash proceeds for the Goods sold to You of at least equal to the market value of the Goods; and
- ii) Immediately pay those proceeds to Us in reduction of all amounts You owe to Us, which We may apply towards amounts You owe to Us in such order as We see fit.
- (g) You must not change Your name, structure, status or partnership, or assign or sell Your business to another party, or initiate any change to any registered documentation, or act in any other manner which would impact on Our registered Security Interest without Our prior written consent. You agree that Your liability under these Terms is not affected by such an event until a new application for credit in Your new entity name as restructured or changed is made and approved by Us in writing.
Exclusion of Notices and Other Obligations
- (h) To the extent permitted by law and for the purposes of sections 115(1) and 115(7) of the PPSA:
- i) We do not need to comply with sections 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d) or 132(4); and
- ii) Sections 142 and 143 are excluded;
- iii) For the purposes of section 115(7) of the PPSA, We do not need to comply with sections 132 and 137(3).
- (i) To the extent permitted by law, You agree to waive:
- i) Your rights to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement) or any other law before a secured party or a receiver exercises a right, power or remedy; and
- ii) Any time period that must otherwise lapse under any law before a secured party or a receiver exercises a right, power or remedy.
- (j) If the law that requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).
Provision of Information
- (k) You agree not to exercise Your rights to make any request of Us under section 275(6) of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
- (l) The parties must not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances where:
- i) Disclosure is required by sections 275(7)(b) to (e) of the PPSA; and/or
- ii) We disclose information of a kind mentioned in section 275(1) of the PPSA to the extent that We are not doing so in response to a request made by an “interested person” (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.
- (m) Notwithstanding the obligations of this section, You shall only authorise the disclosure of information for the purposes of section 275(7)(c) of the PPSA, or request information under section 275(7)(d) of the PPSA, if We approve such disclosure or request for information in writing.
- (n) Nothing in this part prevents any disclosure of information by Us that We believe is reasonably necessary to comply with any other obligations that We may have under the PPSA.
- (o) If You default in the timely performance of any obligation owed to Us, We may enforce the Security Interest by exercising all or any of Our rights under these Terms, the general law and the PPSA.
- (p) Nothing in this part limits or is limited by any other provision of these Terms and Conditions or any other agreement between the parties.
What is Excluded, Limited and Indemnified
14. WARRANTIES AND EXCLUSIONS
- (a) If the Goods and Services have a value or are of a kind ordinarily acquired for personal, domestic or household use or consumption such as to attract to these Terms the operation of the Competition and Consumer Act 2010 (Cth) and Schedule 2 Australian Consumer Law as amended from time to time (“the Act”), certain conditions and warranties will be implied into these Terms and certain rights and remedies will be conferred on You which cannot be excluded, restricted or modified by agreement. Neither party excludes or limits the application of any statute (including the Act), where to do so would contravene such statute or cause any provision of these Terms to be void.
- (b) In addition to the Act, We give specific warranties against defects in relation to the Goods and Services that We supply. Our warranties against defects (including all terms and conditions of those warranties) are found on Our Website or by requesting a copy from Us.
- (c) Except as expressly set out in the Act, these Terms, Our Website or a separate warranty against defects document, We make no other warranties or representations under or in connection with these Terms, including:
- i) The condition, quality, sample, description, fitness or suitability for any purpose of the Goods and Services (whether express or implied and even if that purpose is made known to Us). You are responsible for ensuring that the Goods and Services are suitable for Your intended use;
- ii) The type, size quantity, colour, finish quality and standard and other material details specified by You. You are responsible for ensuring that the materials conform with Your requirements; or
- iii) The accuracy of specifications, diagrams, plans and drawings. You are responsible for ensuring the accuracy of such documents.
- (d) You agree that You have not relied on any inducement, representation or statement made by or on behalf of Us in purchasing the Goods and Services.
- (e) You agree that We are entitled to rely on the accuracy of any specifications, diagrams, plans and drawings provided to Us for supply of the Goods and Services and You do not rely on Our skill or judgment in that respect.
- (f) To the extent permitted by law, all other implied conditions and warranties are excluded and Our liability in that respect is limited to the fullest extent permitted by law.
15. LIMITATION OF LIABILITY
- (a) If We are lawfully allowed to limit our liability to You in respect of the Goods and Services (including but not limited to Our breach of these terms, tort law or negligence), then We may limit Our liability to You by Our choice of:
- i) supplying the Goods and/or Services again; or
- ii) replacing the Goods and/or Services; or
- iii) reimbursing some or all of the price paid by You for the Goods and/or Services.
- (b) In any situation, Our total liability to You will not exceed the price of the Goods and/or Services supplied by Us (to the extent that is permitted by law).
- (c) We are not liable to You for consequential loss of any kind, including loss of proﬁts, loss of sales, loss of market, loss of goodwill or reputation, third party claims, incidental or special damages, or indirect or consequential loss.
- (d) We will not be liable to You if:-
- i) Goods and Services have not been paid for;
- ii) Goods have been abused, misused or neglected by You;
- iii) You have used the Goods other than for the purposes for which they were designed, including for an illegal purpose;
- iv) The Goods have been altered or modified by someone other than Us;
- v) The Goods have been subject to abnormal conditions, including environment, temperature, water, fire, humidity, pressure or other stress.
- (e) Neither party will be liable for any breach of these Terms which is wholly or partly caused by a Force Majeure event. This exclusion does not include Your obligation to pay for Goods and Services and any Additional Expenses.
- (a) To the extent permitted by law, You indemnify Us against and You must pay Us for any Loss that We may suffer or incur as a result of any act or omission by You (or any entity or person that You are responsible for) in relation to the Goods and Services and/or these
- Terms, including but not limited to any breach of these Terms by You, Your negligence, Your failure to perform the obligations in these Terms and any claim made by You against Us.
- (b) For clarity, this indemnity does not apply to Loss that occurs due to Our breach of these Terms or Our negligence.
- (c) Specifically, You must indemnify Us and hold Us harmless (or Our agents, employees or contractors) from:
- i) All reasonable legal costs which We incur as a result of any breach, act or omission by You under these Terms, however that breach, act or omission arises. This includes legal or mercantile agent fees on an indemnity basis for securing any charge and/or recovering any overdue amount for Goods and Services;
- ii) Any stamp duty or other government rates, taxes (including GST) or charges levied on or in connection with the Goods and Services;
- iii) Any costs that We incur as a result of You cancelling or varying Your order after We have accepted it;
- iv) All costs associated with the registration, maintenance and withdrawal of any Security Interest created under these Terms;
- v) Any loss or damage whatsoever caused to Us or Our agents or employees (whether by way of death or injury to any person, accident or damage to property, delay, financial loss or otherwise) arising directly or indirectly from Our attendance at Your Site;
- vi) Loss arising out of Your failure to provide a safe, suitable and compliant Site for Goods and Services to be supplied (including any personal injury or death) except to the extent that We have committed an act of negligence, breach of the law or breach of the Terms;
- vii) Any liability that We incur in connection with Our reliance on information provided by You or on Your behalf which is inaccurate, incomplete or misleading, or Your failure to provide Us with relevant information;
- viii) Any breach of Our Intellectual Property rights.
- (d) This indemnity is a continuing obligation which is separate and independent from your other obligations under these Terms or at law and this indemnity survives termination of these Terms.
Dealing with Issues That May Arise
17. DEFECTS AND RETURNS
- (a) Time is of the essence in relation to this section.
- (b) Unless We agree otherwise in writing, We are not required to accept Goods by return or issue You with a credit for Goods. Our consent to return Goods will not be unreasonably withheld.
- (c) If you wish to return Goods due to an alleged defect, please refer to Our specific warranties against defects available on Our Website or by requesting a copy from Us.
- (d) If You wish to return Goods due to alleged shortage in quantity or description in Your Order, damage or another reason, You must notify Us in writing within 7 days of delivery. If You do not notify Us within 7 days of receiving Goods, You will be deemed to have accepted those Goods and We may refuse to accept return of any such Goods.
- (e) You must allow Us to inspect any Goods that You are seeking to return.
- (f) If We agree to accept Goods by return or provide You with a credit, You must provide Your proof of purchase for the Goods and all evidence for the reason for return (including photographs where applicable).
- (g) Unless We agree otherwise in writing, You are responsible for and We may charge You Additional Expenses that We incur from the Goods being returned, including de-installation, freight, storage and repacking costs.
- (h) Any Goods which are not in original or resaleable condition cannot be returned, including Goods which are not in their original shipping
- cartons and custom-made Goods.
- (i) Credits may only be redeemed against future orders and are subject to Our minimum order policy. No cash refunds will be issued for credits.
- (a) By giving You written notice, We can:
- i) Suspend or cancel supply of Goods and Services (including or any current Order for Goods and Services);
- ii) Suspend or terminate Your Credit Account;
- iii) Require immediate payment of the balance of any Credit Account, invoices or any other amounts due and payable whether or not the Due Date has expired;
- iv) Register a default with any credit reporting agency, where applicable;
- v) Enforce Our rights under any Security Interest;
- vi) Suspend or terminate the contract created by these Terms (collectively “Our Termination Rights”)
- (b) We can exercise Our Termination Rights immediately when:
- i) You have not paid for Goods and Services by the Due Date;
- ii) You exceed the limit of Your Credit Account;
- iii) You breach a material term of these Terms;
- iv) Either party suffers a Force Majeure Event which delays or prevents performance of the whole or any part of these Terms;
- v) You allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against Your property including under the PPSA;
- vi) You engage in illegal activity related to the Goods and Services;
- vii) You engage in conduct which, in Our reasonable opinion, may damage Our goodwill or reputation;
- viii) An Insolvency Event occurs.
- (c) You may terminate the agreement created by these Terms:
- i) Immediately by 14 days’ written notice if We are in breach of a material term of these Terms and We do not rectify the breach within 14 days of Your written notice; or
- ii) By giving us 90 days’ written notice in any other situation.
- (e) On termination We may:
- i) recover any of Our Goods, Equipment, property, materials and all related data, documentation and records from You and You must return all such things on demand;
- ii) recover all sums payable by You under these Terms;
- iii) subject to any limitation on liability applicable, recover from You the amount of any loss or damage sustained as a consequence of the termination, including loss of the benefits which the performance of these Terms would have conferred on Us;
- iv) be regarded as discharged from any further obligations under these Terms; and
- v) pursue any additional or alternative remedies provided by law.
- (a) Any clauses which are expressed to or are, by their nature, intended to survive expiry or termination of these Terms will survive expiry or termination of these Terms for any reason.
- (b) A failure to exercise or a delay in exercising any right, power or remedy under these Terms does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
- (c) If any provision (whole or part) of these Terms is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If modification is not possible, the relevant provision (whole or part) will be deleted. Any modified or deleted provision will not affect the validity and enforceability of the rest of these Terms.
- (d) These Terms may be executed in any number of counterparts, each of which when executed and delivered constitutes a duplicate original, but all counterparts together constitute one agreement.
- (e) In addition to any other method of service provided by law, a notice may be sent by prepaid post, facsimile, email or courier to the address of a party as that address set out in the Contract or subsequently notified. A notice has no legal effect unless it is in writing.
- (f) A notice is deemed to have been delivered and received on the day if by hand, courier, email or fax, or otherwise on the second business day after posting.
21. ELECTRONIC COMMUNICATIONS
- (a) You agree to receive invoices via email.
- (b) You agree to accept service of notices under the Building and Construction Industry Security of Payment Act 1999 (NSW) as amended from time to time, or any like or similar legislation that may be applicable in the State or Territory where the Services were delivered to You, via e-mail (in addition to all other forms of service authorised under the legislation, or regulations made by the Act).
- (c) You agree that website or email communications from Us to You constitute an “electronic communication” within the meaning of the Electronic Transactions Act 2000 (NSW) as amended from time to time (“the Act”).
- (d) You agree that the receipt and service of notices via email is “an information system for the purpose of receiving electronic communications” within the meaning of the Act.
- (e) You agree that evidence of the “dispatch” (within the meaning of the Act) by Us of an email is also prima facie evidence of the “receipt” of the email by You within the meaning of the Act. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.
Version: July 2022