1. Definitions and interpretation
- 1.1. Definitions
- 1.1.1. ‘Buyer’ means the purchaser of the Goods from the Seller:
- 1.1.2. 'Consumer' has the meaning given under the Australian Consumer Law;
- 1.1.3. ‘Goods’ means the products (whether specified in the Purchase Order or otherwise) that the Buyer agrees to buy from the Seller.
- 1.1.4. ‘Invoice” means the invoice issued by the Seller to the Buyer for payment for the purchase of the Goods.
- 1.1.5. ‘Price’ means the price for the Goods including carriage and packaging costs but excluding GST unless otherwise stated.
- 1.1.6. ‘Purchase Order” means the Sellers standard purchase order (in paper or electronic form) by which the Buyer requests that the Seller sell Goods to the Buyer.
- 1.1.7. ‘Seller’ means the seller of the Goods as specified in the Invoice being LED Group Australia Pty Ltd trading as Lighting and Electrical Distribution Group of Unit 9, 210 Queensport Road North, Murarrie QLD 4172 Australia.
- 1.2. Interpretation
- Nothing in these terms and conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
These terms and conditions will prevail over all terms and conditions of the Buyer's order, to the extent of any inconsistency. Any variation to these terms and conditions will only bind the Seller if such variation is in writing and signed by the Seller.
3. Terms of sale
- 3.1. The Goods and all other products sold by Seller are sold on these terms and conditions.
- 3.2. These terms and conditions constitute a contract between the Seller and the Buyer.
4. Drawings, etc
- 4.1. All specifications, drawings, diagrams, photographs and particulars of weights and dimensions submitted to the Seller (including but not limited to those appearing in any catalogue issued by the Seller) are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
- 4.2. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
- 6.1. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
- 6.2. The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or any customer of the Buyer arising from late or non-delivery or late installation of the Goods.
- 6.3. The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
- 6.4. If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
- 6.4.1. this does not constitute a repudiation of the contract of sale formed by these conditions; and
- 6.4.2. the defective instalment is a severable breach that gives rise only to a claim for compensation.
- 6.5. The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 3 days from the date of receipt of Goods by the Buyer.
7. Loss or damage in transit
- 7.1. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
- 7.2. The risk in respect of all Goods supplied by the Seller shall pass to the Buyer upon delivery to the Buyer dispatch by the Seller in accordance with the Buyer’s delivery instructions.
- 7.3. It is the Buyer’s responsibility to inspect the Goods prior to acceptance by the Buyer. The Seller’s signature on a delivery docket (or similar document) shall be deemed acceptance of the Goods in the condition in which they are delivered and the Buyer release’s the Seller from all liability in respect of such damage in transit to such Goods.
- 7.4. The Seller must provide the Buyer with such assistance as may be reasonably necessary to allow the Buyer to institute a claim (if any) against a carrier for damages to Goods in transit so long as the Buyer:
- 7.4.1. has notified the Seller and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and
- 7.4.2. serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.
- 8.1. The Seller's liability for Goods manufactured by the Seller is limited to making good any defects. This must be done by repairing the defects or, at the Seller's option, by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched. This applies so long as:
- 8.1.1. the defects have arisen solely from faulty materials or workmanship;
- 8.1.2. the Goods have not received maltreatment, inattention or interference;
- 8.1.3. accessories of any kind used by the Buyer are manufactured by or approved by Seller;
- 8.1.4. the seals of any kind on the Goods remain unbroken; and
- 8.1.5. the defective parts are promptly returned free of cost to the Seller.
- 8.2. If the Goods are not manufactured by the Seller, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- 8.3. The Seller is not liable for, and the Buyer releases the Seller from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
- 8.4. The Seller's liability under clause 8.3 is limited strictly to the replacement of defective parts in accordance with clause 8.1 of these conditions.
- 8.5. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller's negligence or in any way.
9. Consumer guarantees
Where the Buyer is a Consumer, the Seller's liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:
- 9.1. in the case of Goods, any one or more of:
- 9.1.1. the replacement of the Goods or the supply of equivalent goods;
- 9.1.2. the repair of the Goods;
- 9.1.3. the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
- 9.1.4. the payment of the cost of having the Goods repaired; or
- 9.2. in the case of services:
- 9.2.1. the supplying of the services again; or
- 9.2.2. the payment of the cost of having the services supplied again.
10. Indemnification of suppliers by manufacturers
Where the Buyer is a Consumer, the Seller's liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the Buyer an amount equal to:
- 10.1. the cost of replacing the Goods;
- 10.2. the cost of obtaining equivalent goods; or
- 10.3. the cost of having the Goods repaired, whichever is the lowest amount.
- 11.1. Unless otherwise stated all prices quoted by the Seller are exclusive of Goods and Services Tax (GST).
- 11.2. Prices quoted or advertised by the Seller are calculated at the date of issue of a relevant quotation or advertisement and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (“Third Party Rates”).Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
- 11.3. If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract formed in accordance with these terms and conditions then those alterations are for the Buyer's account.
- 12.1. The Price for the Goods plus GST where applicable is payable on the due date as set on the Invoice unless other terms of payment are agreed in writing between the Seller and Buyer.
- 12.1.1. If the Buyer fails, refuses or neglects to pay the Price on the due date, then without prejudice to any of the Seller’s other rights at law, in equity or otherwise, the Seller may, in its sole and absolute discretion and without prior notice:
- 18.104.22.168. suspend or cancel deliveries of any Goods due to the Buyer;
- 22.214.171.124. appropriate any payment made by the Buyer to such Goods (or made under any other contract with the Buyer) that the Seller may in its sole discretion think fit; and/or
- 126.96.36.199. treat the contract formed by these terms and conditions as repudiated by the Buyer.
- 12.2. The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may assert for any reason whatsoever.
13. Rights in relation to the Goods
- 13.1. Prior to title in the Goods passing to the Buyer under these terms and conditions and the contract formed between the Seller and the Buyer in accordance with such terms the Buyer agrees that:
- 13.1.1. the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
- 13.1.2. the Buyer cannot claim any lien over the Goods;
- 13.1.3. the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller; and
- 13.1.4. where the Buyer is in actual or constructive possession of the Goods:
- 188.8.131.52. the Buyer will not deliver them or any document of title to the Goods to any person except as directed by the Seller; and
- 184.108.40.206. it is in possession of the Goods as a bailee of those Goods and owes the Seller the duties and liabilities of a bailee.
- 13.2. In connection with the Goods, the Seller states to the Buyer that:
- 13.2.1. the Seller has the right to supply the Goods to the Buyer;
- 13.2.2. the activities of the Seller in supplying the Goods do not infringe the rights of the owner of the Goods (where the Seller is not the owner of the Goods); and
- 13.2.3. if the Goods are not owned by the Seller, the Seller is authorised to supply the Goods to the Buyer.
- 13.3. The Seller and the Buyer agree that:
- 13.3.1. the property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Seller and the Buyer;
- 13.3.2. the Buyer is a bailee of the Goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and
- 13.3.3. pending payment in full for the Goods, the Buyer:
- 220.127.116.11. must not supply any of the Goods to any person outside of its ordinary or usual course of business;
- 18.104.22.168. must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business; and
- 22.214.171.124. must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
- 13.4. If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller, the Buyer agrees that:
- 13.4.1. it holds the proceeds of resupply of the Goods on trust, and as agent, for the Seller immediately when they are receivable or are received;
- 13.4.2. it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
- 13.4.3. any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid in accordance with clause 16.4.1 when the property in the Goods passes to the Buyer; and
- 13.4.4. if the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller to the Buyer, subject to, and in accordance with, the Personal Property Securities Act (Cth) 2009, the Seller may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so.
14. Goods sold
All Goods to be supplied by the Seller to the Buyer are as described on the Purchase Order as agreed by the Seller and the Buyer and the description on such Purchase Order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.
15. Returned Goods
- 15.1. Except for any provisions to the contrary contained in these terms and conditions or at law, the Seller is not under any duty or obligation to accept Goods returned by the Buyer.
- 15.2. If the Seller agrees to accept returned Goods from the Buyer, the Buyer must, at the Buyer’s cost return the Goods undamaged and in their original packaging to the Seller at the Seller's place of business as set out in the definition of “Seller” in thee terms and conditions.
- 15.3. If required by the Seller, the Buyer must, in addition to the costs referred to at clause 15.2, ha pay to the Seller a handling fee of 10% of the Price of the returned Goods.
16. Cancellation and alteration of orders
- 16.1. No order may be cancelled or altered by the Buyer except in accordance with this clause 16.
- 16.2. An order may be cancelled by the Buyer at any time up until any of the Goods that the subject of the order are dispatched by the Seller and the Seller will issue to the Buyer:
- 16.2.1. a return authorisation which must be signed by the local area sales manager of the Seller to be valid; and
- 16.2.2. a credit note for the Price of the Goods.
- 16.3. If an order is cancelled by the Buyer after any of the Goods that the subject of the order are dispatched by the Seller, then the Buyer must pay for, or reimburse the Seller for, all carriage and delivery costs to return the Goods to the Seller and the Seller will issue to the Buyer:
- 16.3.1. a return authorisation which must be signed by the local area sales manager of the Seller to be valid; and
- 16.3.2. a credit note for the Price of the Goods less all carriage and delivery costs.
- 16.4. An order may be altered by the Buyer at any time up until any of the Goods that the subject of the order are dispatched by the Seller and such alteration will be deemed to be a request by the Seller to cancel the original order and treated a new order with the Price of such Goods in the new order being the Price of such Goods as at the date the Seller accepts new order (which may result in an increase in the Price).
- 16.5. If there is a cancellation or alteration of an order by the Buyer other than in accordance with this clause 16, the Seller has the right to be indemnified by the Buyer against all losses suffered by the Seller as a result of such cancellation.
17. Buy Back
- 17.1. This clause 17 only applies to Buyers who are on-sellers of Goods supplied by the Seller such as a retailer or distributor (“On-Seller”).
- 17.2. Upon written request from the Buyer made no more than once in any year, the Seller may in its sole and absolute discretion (but with no obligation to do so), agree to buy-back all the Goods which the Buyer has been unable to sell within [1 year?] of delivery to the Buyer (“Buy Back)”.
- 17.3. Any Buy Back will be on the following conditions:
- 17.3.1. it must be first approved in writing by the relevant local area sales manager of the Seller which such approval in the sole and absolute discretion (but with no obligation to do so) of the Seller;
- 17.3.2. no approval for a Buy Back will be granted between 1 November and 31 December;
- 17.3.3. all Goods the subject of the Buy Back must be in box quantities [what does that mean? Does it mean if the goods are sole in a bx of 12 then a complete box of 12 must be returned?];
- 17.3.4. only Goods that an offered for sale by Seller at the time of the request by the Buyer may be included in the Buy Back;
- 17.3.5. all Goods that the Buyer proposed be included in the Buy Back are subject to inspection by the local area sales manager of the Seller who may, in there absolute and sole discretion, refuse to include of any or all of such Goods in the Buy Back;
- 17.3.6. The total Price paid by the Buyer to the Seller for the Goods to returned to the Seller under the Buy Back must not exceed the 10% of the total Price paid by the Buyer to the Seller for all Goods supplied to the Buyer by the Seller in the 12 month period prior to the date of any approval of a Buy Back
- 17.3.7. All freight, delivery and collection costs to return all Goods that are the subject of the Buy-Back to the Seller must be paid for by the Buyer.
- 17.3.8. The Seller and the Buyer agree to provide all reasonable assistance to each other to enable any party who has a liability to goods and services tax (GST) to apply for or make application for any refund or rebate of GST paid or payable under or respect of the supply of Goods under or in relation to the Buy Back.
18. Personal Property Securities Act (Cth) 2009 (PPSA)
- 18.1. These terms and conditions are an agreement that is a security agreement.
- 18.2. The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
- 18.3. The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration.
- 18.4. Until title in the Goods has passed to the Buyer as contemplated by clause 13 of these terms and conditions, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
- 18.5. The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
- 18.6. The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
- 18.7. Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller's security interest in the Goods or of this agreement:
- 18.7.1. any requirement for the seller to give the Buyer a notice of removal of accession;
- 18.7.2. any requirement for the Seller to give the Buyer a notice of the Seller's proposed disposal of the Goods;
- 18.7.3. any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
- 18.7.4. any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;
- 18.7.5. any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and
- 18.7.6. any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.
- 18.8. Expressions defined in the PPSA have the same meaning when used in these terms and conditions.
19. Place of contract
- 19.1. This agreement contained these terms and conditions shall be governed by and construed in accordance with the law of Queensland.
- 19.2. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of Queensland.
- 19.3. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.