ACTWELL TRADING COMPANY PTY LTD

TERMS AND CONDITIONS OF SALE

1. GENERAL:

I. These terms and conditions of sale apply to all sales of goods by Actwell Trading Company Pty Ltd ABN: 66 056 666 927, trading as “Actwell Lighting” to the exclusion of all other terms and conditions and shall prevail over all other terms, conditions or representations including and without limitation any terms contained on the Purchasers purchase order form or otherwise, including any statement by the Purchaser that the Purchaser’s terms shall prevail are expressly excluded. These terms and conditions may only be varied in writing, signed by both parties.

II.  These terms must be read in conjunction with any additional written terms of sale including quotations and or supplementary documents offered by the Company.

III. By placing an order for goods with or taking delivery of goods from the Company, the Purchaser is deemed to have agreed to these terms and conditions.

IV. These Terms and Conditions of Sale apply to all sales of Goods by the Company to the Purchaser. The Purchaser shall be deemed to have read and agreed to these Terms and Conditions of Sale prior to the placing of any order for the Goods.

V. The Company reserves the right to vary, add or substitute these Terms and Conditions of Sale from time to time and any such changes to these Terms and Conditions of Sale shall have effect from the date of publication by the Company.

2. DEFINITIONS:

In these Terms and Conditions of Sale:

“the Company” shall mean Actwell Trading Company Pty Ltd ABN: 66 056 666 927 trading as “Actwell Lighting”

“the Purchaser” shall mean the entity, company or person placing the order with the Company for the purchase of Goods;

“the Goods” shall mean any products purchased by the Purchaser from the Company from time to time;

“the Invoice” shall mean the invoice issued by the Company in response to the Purchaser’s order.

“the Purchase Order” shall mean the written order issued by the Purchaser to the Company. The Purchase Order may be a formal Order or a written request of supply of the Goods.

3. QUOTATIONS, PRICES:

I. Any quotation given by the Company to the Purchaser is not an offer or obligation to sell Goods to the Purchaser until it has accepted the order for the goods from the Purchaser. The Company reserves the right to accept or reject any order it receives.

II. The price of the Goods in a quotation issued by the Company is current as at the date of quotation and is valid for the period of 30 days after that date or within any extended period of validity as may be advised in writing by the Company. Any variation in the applicable cost of the Goods or additional expenses imposed on the Company prior to delivery of the Goods shall be at the Purchaser’s expense.

III. All prices are exclusive of Goods and Services Tax (GST). The Purchaser must pay all GST subject to receipt of a tax invoice. The GST amount will be displayed as a separate item on the tax invoice. The Purchaser must also pay all other applicable duties, taxes and levies in connection with the supply of goods.

IV. We reserve the right to make alterations in design and construction necessitated by technical progress and improvements.

V. For orders totalling less than $30,000 ex gst only; orders over $500 ex gst will be allowed free freight of goods within metropolitan Sydney areas. Orders under $500 ex gst within metropolitan Sydney areas will incur a freight charge.

VI. All orders in regional Sydney, interstate or overseas will incur freight charges. Items over 1.2m will incur freight charges. The Purchaser may request a quote for freight or the Company can provide a quote for freight charges. Alternatively, the Purchaser may choose to organise for pickup and delivery of the Goods.

VII. Items requiring priority freight or airfreight are subject to additional freight charges. These charges are borne by the Purchaser and are to be paid prior to production with a Purchase Order.

4. DELIVERY:

I. Any delivery times notified to the Purchaser are estimates only. The Company is not responsible to the Purchaser for a breach of its obligation to supply the Goods pursuant to an order the Company has accepted, or for any delay in delivery, if the failure to supply or the delay in delivery is caused by matters beyond the reasonable control of the Company (including, but not limited to, acts of God, acts of government, authority, war or other hostility, failure of a third party to supply the goods, national or international transportation problems, and industrial disputes).

II. Under no circumstances shall the Company be liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from late or non-delivery of the Goods. Any delay in delivery shall not excuse or relieve the Purchaser from obligation to accept or pay for the Goods.

III. The Company reserves the right to deliver by portion and delivery by portion shall not entitle the Purchaser to repudiate the contract.

IV. If the Purchaser requests the Company to postpone delivery of the Goods beyond the delivery date or dates specified in the order, the Company may charge an additional fee for such postponement and for storage charges.

V. Under no circumstances is the Company liable for any consequential loss or damage resulting from any breach of contract or warranty, including breach of an essential term, and the Company’s liability is limited to the order price of the Goods.


5. PAYMENT:

I.  The purchaser must pay the purchase price of goods in full before delivery unless the Company has previously agreed to supply those Goods on credit account payment terms. If the Company has agreed to supply goods on credit account payment terms, the Purchaser must pay the purchase price of the Goods 30 days after the date of the Company’s tax invoice unless the Company agrees in writing to extend credit to the Purchaser.

II.  The Company reserves the right to suspend or vary credit payment and terms of the Purchaser’s accounts at any time.

III. Non-standard goods, custom goods or goods made to special request may require an upfront deposit between 30-50% at the discretion of the Company, regardless of whether credit account terms are held with the Company.

IV. If the Purchaser fails to make any payment when due then the Company may:

(a) Suspend deliveries until paid; and/or

(b) Deduct outstanding sums from any sums owed by the Company to the Purchaser under this contract or otherwise; and/or

(c) Require the Purchaser to pay any costs of storage of the Goods; and/or

(d) At the Company’s discretion, charge interest to the Purchaser on any late unpaid amounts at the rate of 1.25% per month from the date when such payment fell due until paid.

(e) Treat this contract as repudiated and terminated; and/or

(f) Resell any Goods not yet delivered to the Purchaser; and/or 

(g) Retain any sums paid as deposit for the Goods.

V.  The Purchaser agrees to pay the Company any expenses (including but not limited to legal costs) incurred in collecting any outstanding debts due by the Purchaser to the Company.

VI.  The Purchaser may not withhold, make deductions from or set-off against payments for any reason.

 

6. CANCELLATION OF ORDERS:

I. Once accepted, orders may not be cancelled by the Purchaser, except with the consent in writing of the Company and on the condition that the Purchaser will indemnify the Company against all losses resulting from such cancellation. Order for non-standard goods, custom goods or goods made to special request cannot be cancelled, otherwise a cancellation fee of 100% of the net invoice value will apply.

II. If the Purchaser defaults under these Terms and Conditions of Sale, the Company may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by the Company without notice to the Purchaser and without being liable to the Purchaser. 

 
 

7. RETURNS:

I.  The Purchaser shall inspect the Goods upon delivery and shall within five days from the date of delivery give a written notice to the Company for whatever reason if the Goods are not in accordance with the contract. If the Purchaser fails to give such notice then the Goods shall be deemed to have been accepted by the Purchaser.

II.  Return of Goods for credit will only be accepted with the prior written agreement of the Company. The Company will not be liable for any costs associated with the removal or reinstallation of Goods that are returned, replaced or repaired, including transport costs.

III. At the discretion of the Company, a re-stocking charge of 30% of the invoiced price of the Goods returned will be charged to the Purchaser. All Goods accepted for return must be unused and in its initial condition in their original packaging and not damaged in any form.

IV. Any costs accrued to facilitate the initial order (e.g. freight) may be deducted from the total amount to be returned.

V. Non-standard goods, custom goods or goods made to special request cannot be returned.

VI. Return freight will be prepaid by the Purchaser.

 

 

 

 
 

8. WARRANTIES:

I. A standard 5-year warranty is given on all standard Company Goods used internally unless otherwise stated in writing. A standard 3-year warranty are given on all standard Company Goods used externally unless otherwise stated in writing.

II. Warranty period commences from date of supply.

III The Company warrants that the Goods are free from defects in workmanship and materials provided that:

a)  The Goods are installed in accordance with the relevant specifications, are not altered or otherwise maltreated and are not used in application for which they were not intended or designed;

b)  The Goods are maintained in a manner over time, allowing The Goods to operate in their intended environment;

c)  The Purchaser immediately notifies the Company in writing setting out full particulars of the alleged defect;

d)  The Company reserves the right to inspect the Goods on site or to require the Purchaser to send back the allegedly defective Goods to the Company for inspection.

IV. A 1-year warranty is given on spare and replacement parts.

V. The Company’s liability is limited to either the replacement or repair of the purchased Goods by the Company and does not extend to rectification costs or consequential loss or damage.

VI. The Purchaser acknowledges and agrees that the Company is not liable for any advice given by its agents or employees in relation to the suitability for any purpose of the Goods and all such advice relied upon is at the Purchaser’s risk.

VII. Nothing in these Term of Sale shall be read or applied so as to have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied or granted by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified; except as provided in this Clause 11.4 and in Clause 11.1, 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 hereby expressly excluded and the Company shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, assembly or installation or operation of the Goods or arising out of the Company’s negligence or in any other way whatsoever.

 
 
 

9. RISK:

I. Risk of the Goods supplied by the Company will pass to the Purchaser immediately upon the goods being delivered to the Purchaser or the Purchaser taking control or possession of the goods (whichever is the sooner) and the Purchaser has the obligation to insure the Goods after this time.

 
 
 
 

10. TITLE:

I.  It is expressly agreed that the Goods delivered by the Company to the Purchaser remain the sole and absolute property of the Company as legal and equitable owner until all money due to the Company has been paid to the Company, but such Goods will be at the Purchaser’s risk from the time of delivery of the Goods to the Purchaser. Payment shall not be taken to occur until all cheques tendered in discharge of sums owing to the Company have been presented and cleared in full.

II.  The Purchaser undertakes to store the Goods on its premises separately from its own Goods or those of any other person and in a manner which makes the Goods readily identifiable as the Company’s Goods until delivery of the Goods to a third party.

III.  The Purchaser must keep and amount from the proceeds of sale which is equal to the debt owed to the Company in a separate identifiable account as the beneficial property of the Company and must immediately pay such amount to the Company upon request.

IV.  The Purchaser’s right to possession of the Goods ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of the Purchaser, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up of the Purchaser. If any of these are to occur the Company may retake possession of any goods on which title has not passed to the Purchases and for that purpose the Purchaser authorises the Company by its employees or agents, to enter any premises where the goods may be situated. The Purchaser indemnifies the Company against all costs and expenses including legal costs incurred by the Company in connection with the recovery or attempted recovery of amount owing to it by the Purchaser.

V. If the Purchaser uses the Goods in some manufacturing or construction process of its own or of some third party, then the Purchaser must hold such part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for the Company.


 
 
 

11. WAIVER:

I. No waiver or modification of any of the terms and conditions shall be effective unless such waiver or modification is in writing and signed by an authorised representative of the Company.

 
 
 
 
 

12. TERMINATION:

I. Any contract may at the Company’s option be terminated in the event of:-

a)  the insolvency of the Purchaser; or

b)  execution being levied against any of the Goods of the Purchaser; or

c) the Purchaser being placed in liquidation (whether voluntary or otherwise) administration, receivership or the like or proceedings for such an order being commenced against the Purchaser; or

d) the Purchaser breaches any terms or purports to cancel any contract with the Company.

II. Upon such termination all sums outstanding shall be immediately due and payable, the Company shall be entitled to repossess at the cost of the Purchaser all Goods which remain the property of the Company and the Company may dispose of such Goods as it wishes and the Purchaser shall reimburse the Company for any losses or expenses incurred by it in connection with the contract, without prejudice to any other right conferred upon the Company by law.

 
 
 
 
 
 
 

13. WHOLE AGREEMENT:

These Terms and Conditions of Sale and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance thereof (which will only apply to that particular order), all previous negotiations, representations, warranties, arrangements and statements (if any), whether expressed or implied, including any collateral agreement or warranty, regarding the subject matter or the intentions of either of the parties are merged in these Terms and Conditions of Sale and otherwise are hereby excluded and cancelled. The Purchaser acknowledges that it has not been induced to enter into this agreement by any representation, advice or information given by or made on behalf of the Company.