Terms & Condition
LEDsafe Pty Ltd: Terms and Conditions for the sale of equipment or services
1. INTERPRETATION
1.1
“LEDsafe” means LEDsafe Pty Ltd as Trustee for The Ambassador Trust ABN: 62 478 147 035 as set out in the Quote/Invoice.
“Contract” means the Quote or Invoice and these Terms and Conditions.
“Force Majeure” means any cause outside the control of the party affected, including any event defined as an event of Force Majeure in a contract between the affected party and any other party the occurrence of which prevents the affected party from performing its obligations under this Contract.
“Goods” means the goods described in the Quote or Invoice.
“GST” means GST imposed by the GST law, applicable from time to time, as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 or a successor Act.
“Manufacturer” means the manufacturer of the Goods.
“Purchaser,” means the Party to whom a Quote or Invoice is addressed.
“Quote” means a quote or offer provided by LEDsafe .
“Site” means the delivery address set out in the Quote.
“Services” means the service described in the Quote.
“Contract” means the Quote or Invoice and these Terms and Conditions.
“Force Majeure” means any cause outside the control of the party affected, including any event defined as an event of Force Majeure in a contract between the affected party and any other party the occurrence of which prevents the affected party from performing its obligations under this Contract.
“Goods” means the goods described in the Quote or Invoice.
“GST” means GST imposed by the GST law, applicable from time to time, as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 or a successor Act.
“Manufacturer” means the manufacturer of the Goods.
“Purchaser,” means the Party to whom a Quote or Invoice is addressed.
“Quote” means a quote or offer provided by LEDsafe .
“Site” means the delivery address set out in the Quote.
“Services” means the service described in the Quote.
1.2
These Terms and Conditions form part of any Quote in which they are referred to or to which they are attached.
2. ENTIRE AGREEMENT
2.1
The Contract supersedes all other discussions, representations and arrangements relating
to the supply of the Goods or Services and constitutes the entire agreement between
LEDsafe and the Purchaser with respect to the sale of the Goods or Services.
2.2
No variation, modification or alteration of any of the terms of the Contract shall be of any
effect unless in writing and signed by each of the parties.
2.3
If there is any inconsistency between the Quote and these Terms and Conditions then the
Quote will prevail.
3. PAYMENT
3.1
Payment shall be due at time of Order. Terms may be offered following a term of
satisfactory trading to be solely at LEDsafe’s discretion with 50% deposit at time of order
and final payment within 14 days after delivery of the Goods to the Site or supply of the
Services. Payment shall not be delayed nor offset allowed. Interest is payable on overdue
payments at 15% per annum compounded annually.
3.2
If the scope of the Goods or Services supplied varies significantly from that in the Quote, the Purchaser must pay any reasonable amounts notified by LEDsafe in relation to the
additional Goods or Services.
3.3
If LEDsafe can demonstrate that any costs associated with the provision of the
Goods or Services (whether labour, equipment, regulatory or other costs) have
increased substantially after the date of the Quote but before the supply of the
Goods or Services, the Purchaser must pay the amount of any such increase once
advised in writing.
4. RISK AND TITLE IN THE GOODS
4.1
Risk in the Goods shall pass to the Purchaser at the time of delivery to the Site.
4.2
Notwithstanding delivery and the passing of risk in the Goods, title (both legal and
equitable) in the Goods shall not pass to the Purchaser until LEDsafe has received
payment in full for the price of the Goods.
4.3
Until such time as title in the Goods passes to the Purchaser, the Purchaser shall hold
the Goods as LEDsafe’s fiduciary agent and bailee and shall keep the Goods separate
from those of the Purchaser and third parties and shall properly store, protect, insure
and identify the Goods as LEDsafe’s property.
4.4
Until such time as the title in the Goods passes to the Purchaser, LEDsafe shall be entitled at any time to require the Purchaser to redeliver up the Goods to LEDsafe and, if the Purchaser
fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Goods are stored and to repossess the Goods. The Purchaser shall ensure that any third party with whom the Goods are stored consent to this clause and the Purchaser appoints LEDsafe as their attorney for the purposes of this clause.
4.5
Notwithstanding that title in the Goods remains with LEDsafe until payment has been
received in full, the Purchaser may sell such goods or use the Goods in the ordinary course of the Purchaser’s business. As between the Purchaser and the Purchaser’s customer of any item of the Goods, the Purchaser sells as principal and not as agent of LEDsafe. The proceeds of sale of each item of Goods must be held by the Purchaser in a separate fund on trust for LEDsafe and the Purchaser is under a duty to account to LEDsafe for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Purchaser to pay an amount to LEDsafe for Goods supplied.
4.6
Until Goods are sold, the Purchaser must keep the Goods safe and free from deterioration,
destruction, loss or harm, clearly designate the Goods as the property of LEDsafe, store
them in such a way they are clearly identified as the property of LEDsafe and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by LEDsafe.
4.7
This reservation of title and ownership is effective whether or not the Goods have been
altered from their supplied form, or commingled with other goods.
5. SECURITY INTEREST
5.1
The retention of title arrangement described in clause 4 constitutes the grant of a purchase money security interest by the Purchaser in favour of LEDsafe in respect of all present and after-acquired Goods supplied to the Purchaser by LEDsafe.
5.2
The Purchaser must immediately, if requested by LEDsafe, sign any documents, provide all
necessary information and do anything else required by LEDsafe to ensure that LEDsafe’s purchase
money security interest is a perfected security interest.
5.3
The Purchaser will not enter into any security agreement that permits any other person to
have or to register any security interest in respect of the Goods or any proceeds from the sale
of the Goods until LEDsafe has perfected its purchase money security interest.
5.4
For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118,
121(4), 130, 132(4) 135, 142 or 143 of the PPSA in relation to the Goods.
5.5
The Purchaser hereby waives any rights the Purchaser may otherwise have to:
(a) receive any notices the Purchaser would otherwise be entitled to receive under ss 95,118, 121, 130, 132 or 135
(b) apply to a Court for an order concerning the removal of an accession under section 97
(c) object to a proposal of the Purchaser to purchase or retain any collateral under ss 130 and 135
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest LEDsafe may have in Goods supplied to the Purchaser from time to time.
(a) receive any notices the Purchaser would otherwise be entitled to receive under ss 95,118, 121, 130, 132 or 135
(b) apply to a Court for an order concerning the removal of an accession under section 97
(c) object to a proposal of the Purchaser to purchase or retain any collateral under ss 130 and 135
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest LEDsafe may have in Goods supplied to the Purchaser from time to time.
5.6
For the purposes of this clause “PPSA’ means the Personal Property Securities Act
2009. The expressions “accession”, “collateral”, ‘financing statement”, “financing
change statement”, “security agreement”, “security interest”, “perfected security
interest” and “verification statement” have the meanings given to them under, or in
the context of the PPSA. References to sections are to sections of the PPSA.
6. EXCLUSION OF IMPLIED TERMS
6.1
The Purchaser may have the benefit of consumer guarantees under the Australian Consumer
Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms and Conditions or in connection with the supply of
any Goods or Services by LEDsafe under law or statute or custom or international convention
are excluded.
7. LIMITATION OF LIABILITY UNDER AUSTRALIAN CONSUMER LAW GUARANTEES
7.1
To the extent that Goods supplied by LEDsafe are not goods of a kind ordinarily acquired for personal, domestic or household use and the Purchaser is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Purchaser agrees that LEDsafe’s liability for a failure to comply with a consumer guarantee that the Purchaser may have a benefit under the Australian Consumer Law other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of LEDsafe, one or more of the following:
(a) replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) equivalent goods; or
(e) the payment of the cost of having the goods repaired.
To the extent that Services supplied by LEDsafe are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, LEDsafe’s liability for failure to comply with a consumer guarantee that the Purchaser may have the benefit of is limited to, at the option of LEDsafe:
(a) the supply of the Services again; or
(b) the payment of the cost of having the Services supplied again.
(a) replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) equivalent goods; or
(e) the payment of the cost of having the goods repaired.
To the extent that Services supplied by LEDsafe are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, LEDsafe’s liability for failure to comply with a consumer guarantee that the Purchaser may have the benefit of is limited to, at the option of LEDsafe:
(a) the supply of the Services again; or
(b) the payment of the cost of having the Services supplied again.
8. SPECIFICATION
8.1
The Purchaser shall be responsible for and bear the cost of any alteration to the
Goods or Services supplied by LEDsafe arising from any discrepancy, error or
omission in any drawing, specification or other information supplied by or approved by the
Purchaser.
8.2
The Purchaser acknowledges that it has made its own enquiries about the nature of the
Goods and their suitability for any use or purpose and has not relied on any representation
by LEDsafe in relation to these matters.
9. DELIVERY
9.1
LEDsafe may deliver the Goods to the site.
10. WARRANTY
10.1
The Goods may be covered by the Manufacturer’s standard warranty which if possible may be assigned by LEDsafe to the Purchaser. The application of the conditions of the warranty are strictly between the Manufacturer and the Purchaser. To the extent permitted by law LEDsafe excludes all terms and warranties not expressed in the Contract and shall not be liable for any claims made by the Purchaser for any defects or problems identified during or after the warranty period.
10.2
The Purchaser agrees to make all necessary enquires, examinations and inspections and to take all necessary precautions for the safe collection and subsequent use of the Goods by the Purchaser or any other person.
11. LIABILITY
11.1
The Purchaser shall be liable for, and to the extent permitted by law hereby releases and indemnifies LEDsafe against all claims, loss or expense including claims in contract (tort or otherwise) whether arising out of, or in connection with or relating to any breach of this Contract, the performance or provision of the Goods or Services or any fact matter or thing relating to the Goods or Services or error in information supplied to the Purchaser or a user before or after the date of the Purchaser’s or users use of the Goods or Services.
11.2
Notwithstanding anything else expressed or implied in these terms, to the extent permitted by law, LEDsafe shall not be liable for any injury to persons or damage to property, loss of production, or for any special indirect or consequential loss or damage whatsoever such as but not limited to loss of profits, loss of use, loss of power, costs of capital or costs of replacement power, arising in any way whether directly or indirectly and whether as a result of negligence on the part of LEDsafe or its employees, agents LEDsafe Pty Ltd: Terms and Conditions for the sale of equipment or services and contractors or otherwise arising out of or resulting from, whether directly or indirectly, the design, manufacture, supply, use or installation of the Goods or Services.
12. COMMONWEALTH AND STATE LEGISLATION
12.1
LEDsafe and the Purchaser shall comply with the requirements of all Commonwealth and State legislation (including without limitation all relevant environmental and work health and safety legislation) and will comply with the requirements of any authority having jurisdiction over or in respect of the Goods or Services.
12.2
The Purchaser shall give all notices and obtain all consents required to be given or
obtained under such laws and shall pay all fees and bear all costs connected with such
notices and consents.
13. FORCE MAJEURE
13.1
The failure by LEDsafe to observe or perform wholly or in part any of its obligations in this Contract is deemed not be a breach if the failure was caused by Force Majeure.
14. TERMINATION
14.1
If the Purchaser:
(a) is in breach of any of the terms of this Contract; or
(b) has become insolvent, or bankrupt or has had an administrator, receiver or liquidator appointed;
then LEDsafe may at its option terminate the Contract without notice. Require the Purchaser to return the Goods or any part thereof by notice in writing. Retain any part of the Goods not yet delivered or do any combination of these things. Any affected Goods may be retained or resold by LEDsafe and sold at a price determined by LEDsafe with any difference in price remaining with the purchaser as debt owed to LEDsafe. LEDsafe’s rights under clause 4.4 shall apply.
(a) is in breach of any of the terms of this Contract; or
(b) has become insolvent, or bankrupt or has had an administrator, receiver or liquidator appointed;
then LEDsafe may at its option terminate the Contract without notice. Require the Purchaser to return the Goods or any part thereof by notice in writing. Retain any part of the Goods not yet delivered or do any combination of these things. Any affected Goods may be retained or resold by LEDsafe and sold at a price determined by LEDsafe with any difference in price remaining with the purchaser as debt owed to LEDsafe. LEDsafe’s rights under clause 4.4 shall apply.
14.2
Nothing in clause 11.1 nor the exercise by LEDsafe of any rights under that clause shall in any way limit any right to damages or other remedies LEDsafe may have with respect to this Contract.
15. WAIVER
15.1
The failure of any party to enforce any provision of this Contract or exercise any
rights expressed in this Contract, shall not be a waiver of such provisions or rights and shall not affect the enforcement of this Contract.
16. NO ASSIGNMENT
The Purchaser shall not assign its rights or obligations under this Contract without the prior written consent of LEDsafe.
17. GOVERNING LAW
This Contract shall be governed by and construed in accordance with the laws of New South Wales, Australia. Each party to this Contract submits to the non-exclusive jurisdiction
of the Courts of that State.
18. NOTICES
A notice in connection with the Contract
(a) must be in writing;
(b) must be marked for the attention of the person described in the Quote; and
(c) must be left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in the Quote or if the addressee notifies another address or facsimile number then to that address or facsimile number.
(a) must be in writing;
(b) must be marked for the attention of the person described in the Quote; and
(c) must be left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in the Quote or if the addressee notifies another address or facsimile number then to that address or facsimile number.
19. GST
19.1
All amounts payable or the value of other consideration provided in respect of
supplies made in relation to this Contract are exclusive of GST (if any). If a GST is
levied or imposed on any supply made (or deemed to have been made) under or in
accordance with this Contract the amounts payable or the value of the consideration
provided for that supply (or deemed supply) must be increased by the amount of GST
payable in relation to the Supply.
19.2
Where any amount is payable to a party being a reimbursement, indemnification or
similar payment calculated by reference to a loss, cost, expense or other amount
incurred by that party then such amount shall be reduced by the amount of any input
tax credit available to that party and, if a taxable supply, shall be increased by the GST
payable in relation to that supply.
19.3
All GST payable shall be payable at the time of any payment to which it relates is payable.
19.4
Where in relation to this agreement a party makes a taxable supply, that party shall
provide a tax invoice in respect of that supply before the GST payable in respect of
that supply becomes due.
20. CONFIDENTIALITY
20.1
The parties acknowledge that the information contained in this Contract and all data and
information acquired or received by a party pursuant to this Contract is confidential and must
not be disclosed to any other third party without the prior written consent of the other.
20.2
This does not apply to information required to be disclosed by law or pursuant to stock exchange listing rules or to legal advisers, auditors, agents or employees of each party or its related bodies corporate in connection with this Contract
21. GREEN ENERGY RIGHTS (Including Energy Savings Certificates)
21.1
The parties acknowledge that Green Energy Rights may arise out of the installation of the
Goods or the provision of the Services.
21.2
The parties agree that the Purchaser will assign all rights, title and interest in any Green
Energy Rights that may arise, accrue or come into existence under this Contract to the
nominated Accredited Certificate Provider nominated by LEDsafe unless otherwise specified
in the Quote for goods or services supplied.
21.3
To the extent that any Green Energy Rights are owned by the Purchaser under this
Contract, the Purchaser acknowledges that LEDsafe may act as an agent for or introduce
an Accredited Certificate Provider (ACP) for the purposes of certificate creation as is
relevant to the project and State of origin of the Green Energy Rights produced. A point
of sale discount for goods or services or rebate to the Purchaser may result from
revenues produced by the trade or sale of those Green Energy Rights by the assigned
ACP, details of which will be set out to the purchaser prior to the nomination of the
ACP and commencement of the creation of any relevant certificates.
21.4
Each party will promptly do and perform all further acts and execute and deliver all further
documents required by law or reasonably requested by any other party to give effect to this
clause 21.
21.5
For the purposes of this clause 21:
“Green Energy Rights” means all rights, benefits, credits or certificates of any kind which derive from the sale of the Goods or the provision of the Services including but not limited to all Greenhouse Gas Reduction Credits.
“Green Energy Rights” means all rights, benefits, credits or certificates of any kind which derive from the sale of the Goods or the provision of the Services including but not limited to all Greenhouse Gas Reduction Credits.
21.6
“Greenhouse Gas” means any of the following gases; carbon dioxide, nitrous oxide, methane, sulphur hexafluoride, perfluorocarbons and hydrofluorocarbons.
“Reduction Credits means any benefits or credits of any kind (including any emission reduction unit) which arise or are created under any regulatory regime or
licensing requirements including any rights relating to demand side abatement which arise or are capable of being created as a result of the sale of the Goods or the provision of the Service.
