TERMS & CONDITIONS OF SALE
1. General Terms and Contract
1.1 The Contract constitutes the entire agreement between Maxlight and the Customer in relation to the supply of Goods and/or Services.
1.2 The terms of the Contract supersede all other terms, conditions or provisions contained in any purchase order, sales confirmation, or other document issued by the Customer to Maxlight. The Customer acknowledges that, unless otherwise agreed in accordance with these General Terms, all other terms, conditions or provisions contained in any purchase order, sales confirmation or other documents issued by the Customer, are not part of the Contract and are not binding on Maxlight.
1.3 Any variation of a term, exclusion of a term from the Contract or inclusion of a term into the Contract must be in writing and signed by both Maxlight and Customer.
1.4 If there is ambiguity or inconsistency of the terms of the Contract, precedence of the terms will be determined in the following order: the Agreed Amendments; the Invoice; the accepted Quotation; the Credit Application; and these General Terms.
2.1 Maxlight will provide the Customer with an Invoice at or before delivery of the Goods.
2.2 Unless otherwise specified in the Quotation, the Customer must pay to Maxlight the Purchase Price within 30 days of the end of the month of the date of the Invoice provided in respect of the Goods.
2.3 The Customer must pay interest on any amount not paid by the relevant due date for payment, from the relevant due date until the date the amount is paid. Interest will be charged daily from the due date for each Invoice and will be calculated by multiplying the Interest Rate by the overdue amount.
2.4 Unless agreed by Maxlight, the Customer is not entitled to any right of set-off, deduction or discount.
2.5 If the Customer suffers or commits an Event of Default, Maxlight may suspend work on, or delivery of, the Goods until the Customer pays the full amount of the Purchase Price or provides acceptable security to Maxlight.
3. GST and Other Tax
The Customer is liable to pay any federal, state or local sales, use, excise or other similar taxes including, without limitation, any GST. Prices stated in any Quotation and the Invoice are, unless otherwise agreed, subject to GST. All such applicable taxes will be included in the Purchase Price.
4. Quotation and Acceptance
4.1 Maxlight may give the Customer a Quotation.
4.2 Any estimate of costs specified in the Quotation is based on the Customer’s instructions and current costs of production. Unless specifically identified, estimates are not inclusive of GST or other applicable taxes or additional amounts charged to the Customer in accordance with Contract.
4.3 If the Customer’s original instructions do not include all of the information relevant to the supply of the Goods including, without limitation, all specifications and information reasonably required by Maxlight, any estimate of costs in a Quotation will be exclusive of the cost relating to the omitted information. All additional costs relating to the omitted information will be charged to the Customer.
4.4 Until the Customer accepts the Quotation, Maxlight reserves the right to withdraw the Quotation or vary any part of the Quotation including, without limitation, any estimate, fee, charge, or date specified in it.
4.5 The Customer may accept the Quotation in writing or by conduct. When the Customer accepts the Quotation, the Quotation will be deemed to be the Customer’s final and complete instructions. Maxlight is not liable for any error or omission in the Quotation if that error or omission was not corrected by the Customer prior to acceptance.
5. Work, Proofs and Alterations
5.1 All additional work carried out by Maxlight at the Customer’s request, whether experimental or otherwise, will be charged to the Customer.
5.2 Any additional work caused by the Customer changing their instructions including, without limitation, any specifications of the Goods, will be charged to the Customer.
5.3 Maxlight may provide a proof of the Goods to the Customer for approval. Maxlight is not liable for errors or omissions contained in the proof which are not corrected by the Customer. Additional proofs provided by Maxlight or requested by the Customer will be charged to the Customer.
6. Discretion of Maxlight
If the Customer gives Maxlight discretion to determine any aspect of the Goods including, without limitation, style, type or layout, and the Customer subsequently requests a change, any costs relating to the change will be charged to the Customer.
7. Ownership of Materials
Except to the extent prohibited by any law and unless otherwise agreed between Maxlight and the Customer, all intellectual property rights in any drawings, sketches, specifications, layouts, designs or other information, data or features in relation to the Goods or arising from any Services which are created or developed by Maxlight remain the exclusive property of Maxlight.
8. Delivery of Goods
8.1 Unless otherwise stated in the Invoice, the Purchase Price includes the costs of delivery of the Goods to the Customer.
8.2 Any time specified by Maxlight for delivery is an estimate only. Maxlight will use reasonable endeavours to meet the specified delivery time but does not accept any liability for failure to provide the Goods by the time specified, unless otherwise expressly stated in an Invoice.
9. Retention of Title and Risk
9.1 Legal and beneficial title in the Goods is retained by Maxlight and does not pass to the Customer until:
(a) the Purchase Price of the Goods has been paid for in full; and
(b) all other amounts owed by the Customer to Maxlight (whether in connection with the Goods, this Contract, another contract or any other obligation or liability of any kind) have been paid in full.
9.2 If the Goods have become part of or are attached to any other goods or property of the Customer, then the proportion of the value of those goods or property to the value of Maxlight’s Goods shall belong to Maxlight.
9.3 Until such time as the Goods and all other amounts owed by Maxlight have been paid for in full, the Customer is at liberty to sell the Goods in the ordinary course of the Customer’s business, but agrees that it does so as fiduciary of Maxlight and all proceeds from the sale of the Goods will be held on trust for Maxlight.
9.4 If the Customer suffers or commits an Event of Default, Maxlight shall be entitled to enter any premises occupied by the Customer, and to use the Customer’s name in so doing, to take possession of the Goods.
9.5 The Customer consents to Maxlight effecting a registration on the PPSA register (in any manner Maxlight considers appropriate) in relation to any security interest contemplated by this Contract and the Customer agrees to provide all assistance reasonably required to facilitate this. The Goods will include “other goods” as classified under the PPSA. The Customer waives the right to receive notice of a verification statement in relation to any registration on the register.
9.6 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with this Contract the Customer agrees the following provisions of the PPSA will not apply to the enforcement of this Contract: section 95 (notice of removal of accession) to the extent that it requires Maxlight to give a notice to the Customer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal) to the extent that it requires Maxlight to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
9.7 Without limiting the monies secured under clause 9.1, if the Customer makes a payment to Maxlight at any time whether in connection with this Contract or otherwise Maxlight may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
9.8 Notices or documents required or permitted to be given to Maxlight for the purposes of the PPSA must be given in accordance with the PPSA.
9.9 All risk in the Goods passes to the Customer upon delivery.
10. Warranties and Limitation of Liability
10.1 The Customer agrees that, to the maximum extent permitted by law:
(a) all representations, liabilities, express or implied terms, conditions and warranties and all product guarantees, rights and remedies under the ACL or otherwise existing at law not in this Contract are excluded;
(b) Maxlight is not liable for any injury, loss or damage arising out of or in connection with the Goods or Services or any other cause whatsoever including, without limitation, indirect or consequential loss to the Customer arising from third party claims occasioned by errors in producing the Goods or Services or delay in their delivery; and
(c) whether or not the statutory product guarantees, rights and remedies under the ACL or similar law apply, Maxlight’s liability for anything in relation to the Goods or Services including damage or economic loss, is limited (to the maximum extent permitted by law), to any of the following (at Maxlight’s election):
(1) in relation to Goods, to replace or repair the Goods or to pay the cost of replacement or repair; or
(2) in relation to Services, to supply the Services again or to pay the cost of having the Services supplied again.
10.2 For the avoidance of doubt, Maxlight does not warrant the specifications of the Goods, including any estimated energy saving or useful life. The Customer represents that they have provided all necessary information that Maxlight reasonably requires in relation to the specifications of the Goods. The Customer further represents that any information provided is complete and not misleading.
10.3 Maxlight agrees to provide the Customer with the benefit of any applicable manufacturer’s warranty for the Goods.
10.4 Maxlight is not responsible for, and accepts no liability in relation to, installation or use of the Goods by the Customer.
10.5 The Customer acknowledges and agrees that Maxlight may be unable to provide facilities for the repair of Goods or spare parts for the Goods due to obsolescence or other technological change that renders any repair facility or spare parts unavailable.
11. Return of Goods
11.1 The Customer has no right to return the Goods other than in respect of the breach of a non-excludable statutory guarantees or as otherwise agreed by Maxlight.
11.2 To the maximum extent permitted by law, if the Customer wishes to return the Goods it must notify Maxlight within 3 Business Days of receiving the Goods. The Customer must return, at its cost, such sample or samples of alleged defective Goods and/or other evidence as Maxlight requires and must not dispose of any alleged defective Goods except with Maxlight’s prior written approval.
11.3 Except for defective Goods supplied by Maxlight, Goods returned for credit will only be considered for acceptance subject to the following conditions:
(a) Goods returned must have been incorrectly supplied;
(b) Goods returned must not be obsolete, incomplete, damaged or otherwise imperfect;
(c) Goods must not be returned unless Invoice numbers are advised and return freight charges are paid by the Customer and prior arrangement in writing is given by Maxlight;
(d) Goods accepted for return must be in original packaging or as supplied and remain in good condition;
(e) the amount of credit allowed in respect of Goods returned (if any) may be subject to a service charge at Maxlight’s rate currently in effect, unless the agreement specifically states otherwise; and
(f) the Customer is responsible for Goods lost or damaged in transit during return to Maxlight.
11.4 If Maxlight agrees to the return of any of the Goods in accordance with clause 11.2, Maxlight will:
(a) reimburse the Customer for the relevant part of the Purchase Price applicable to the Goods returned; Maxlight may reimburse the Customer by providing a credit note to the Customer; or
(b) replace the returned Goods (if replacement Goods are available).
11.5 The return of any of the Goods does not preclude, or otherwise reduce or waive the Customer’s obligation to pay any amounts owing to Maxlight whether in respect of the relevant Invoice or any other amount.
12.1 All notices given by a party must be in English and in writing. If a notice is given by a party on a non-Business Day or after 4.00 pm on any Business Day, then the notice will be taken to be received at 9.00 am on the following Business Day.
12.2 If any provision of this Contract is void, voidable or otherwise unenforceable, that provision must be read down to the extent necessary to make that provision valid. If that provision cannot be read down to that extent, it must be severed. If the provision is severed all other provisions remain in full force and effect.
12.3 A party may only waive a provision, right or breach by another party if it is in writing and signed by all parties. The waiver only applies to the circumstance and terms described in the written agreement.
12.4 A party is not liable for a breach of the Contract to the extent that the breach is caused by force majeure including, without limitation, acts of God, government action, trade dispute, industrial relations action or the inability of Maxlight to procure any products because of the foregoing reasons, for the period that those circumstance continue, if that party immediately notifies the other party and tries to remedy the cause as soon as possible.
12.5 The Contract is governed by the law of Victoria and the parties submit to the exclusive jurisdiction of the courts of Victoria.
13. Definitions and Interpretation
13.1 In these General Terms unless the contrary intention appears:
ACL means Australian Consumer Law as defined in the Competition and Consumer Act 2010 (Cth);
Agreed Amendments means any term or condition agreed between Maxlight and Customer which incorporates, supersedes or varies a term of the Contract, excludes a term from the Contract or includes a term into the Contract;
Business Day means any day other than a Saturday, Sunday or designated public holiday in Melbourne;
Contract means, in relation to the supply of Goods and/or Services to a Customer, the contract comprising the following documents (where applicable):
(a) the Credit Application;
(b) these General Terms;
(c) the applicable unconditionally accepted Quotation relating to that supply;
(d) the applicable Invoice relating to that supply; and
(e) any applicable Agreed Amendments, read as one document;
Credit Application means the application for a credit account between Maxlight and the Customer;
Customer means the person specified:
(a) as the applicant in the Credit Application; and/or
(b) as the Customer in the Quotation; and/or
(c) in the “Bill to” section of the Invoice;
Customer Property means any property or material owned by the Customer;
Event of Default means any of the following:
(a) the Customer becoming insolvent, being declared insolvent or committing an act of bankruptcy;
(b) any proceeding being commenced to appoint a liquidator, or provisional liquidator or similar over the Customer (for purposes other than an amalgamation or solvent reconstruction of the Customer);
(c) the Customer being placed under administration or management;
(d) any trustee, receiver or receiver and manager being appointed over any material part of the Customer’s assets;
(e) any event occurring in relation to the Customer that Maxlight reasonably considers has a material adverse affect on the Customer’s ability to pay for the Goods in accordance with the terms of payment under this Contract.
General Terms means these terms and conditions;
Goods means the product or products specified in an Invoice which are to be supplied to the Customer by Maxlight;
GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Guarantor means the person named as guarantor in the Credit Application or a copy or a counterpart of it.
Interest Rate means the rate from time to time and for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) divided by 365;
Invoice means a tax invoice issued by Maxlight to the Customer in relation to the supply of the Goods;
Invoice Date means the date of the Invoice;
Maxlight means Maxlight Pty Ltd ACN 130 553 409;
PPSA means the Personal Property Securities Act 2009 (Cth);
Purchase Price means the total amount or amounts specified in the Invoice as the total amount owed and payable by the Customer to Maxlight;
Services means any information, advice or associated work or services provided by Maxlight in relation to the Goods; and
Quotation means a document given by Maxlight specifying the estimated cost for the supply of the Goods.
13.2 In these General Terms, unless the Contract otherwise requires:
(a) headings do not affect interpretation;
(b) singular includes plural and plural includes singular;
(c) references to legislation includes any amendment to it, any legislation, substituted for it and any subordinate legislation made under it;
(d) reference to a person includes a corporation; and
(e) an expression defined in the Corporations Act 2001 (Cth) has the meaning given by the act;
(f) reference to a thing including all or any part of it.