LIMELIGHT ILLUMINATIONS PTY. LTD. [ABN 75 076 912 637]
AGREEMENT
TERMS OF TRADE
The Date of this Agreement is contained in Item 1 of the attached Schedule
BETWEEN
LIMELIGHT ILLUMINATIONS PTY. LTD. [ABN 75 076 912 637] of Suite 5, 716 New South Head Road,
ROSE BAY, NSW 2029 [“Limelight”]
And
The Customer described in Item 2 of the Schedule
1. Introduction
- 1.1. The Customer agrees to purchase the Products and Services as listed in Item 3 of the Schedule from Limelight and
Limelight agrees to supply such Products and Services on these Terms and Conditions as contained in this Agreement.
1.2. The Agreement comprises both the contents of the Schedule attached hereto and these Terms of Trade.
1.3. These Terms of Trade prevail to the extent of any inconsistency with the details set out in the Schedule.
1.4. Capitalised words have the meaning given to them in the Schedule and in clause 21 of these Terms of Trade.
2. Quotations
- 2.1. Upoest of the Customer Limelight will provide a Quote for Products and Services
2.2. Prior to providing the Qn the requuote Limelight may inspect the Site described in Item 4 of the Schedule for the
Products and Services requested by the Customer
2.3. The Quote will remain valid for 30 days from the date of the Quote unless otherwise specified in the
Special Conditions in the Schedule.
2.4. Subject to the terms of this Agreement to the contrary, any variation to a Quote as required by either party to this
Agreement must be first approved by the other party in writing before the variation is allowed.
2.5. Limelight may withdraw a Quote in whole or in part at any time upon written notice to the Customer including prior
to the expiration of the 90 day validation period referred to in clause 2.1.
2.6. Limelight may revise and vary the Quote [ “the Revised Quote”] at any time should it become apparent during the
course of carrying out the Services that further work is required due to on-site obstacles orcabling access constraints that
were not apparent during any inspection of the Site or at any time thereafterbefore the completion of the Work
2.7. In the event that Limelight submits a Revised Quote pursuant to clause 2.6 then the Customer must provide their approval
in writing in respect of the Revised Quote to Limelight within 7 days of the date of the Revised Quote. In the event that the
Customer does not provide their approval within 7 days then Limelight may elect to either:
(a) suspend the performance of the Products and Services the subject of the Revised Quote until such time as Limelight
receives the Customer’s approval and the Customer will be liable for the costs and consequences of any such delay after
7 days from the date of Revised Quote caused by this suspension of the Products and Services ; or
(b) withdraw the Revised Quote in accordance with Clause 2.5 and claim from the Customer any costs
and expenses actually incurred to the date of the notice of the withdrawal of the Revised Quote andthe Customer
hereby agrees to pay to Limelight the amount claimed.
3. Purchase orders
- 3.1. The Customer completes a purchase order by signing the section entitled “Acceptance of Quote” on the
Quote and returning a copy to Limelight.
3.2. Any form of purchase order supplied by the Customer in response to a Quote by Limelight must be first
approved by Limelight in writing to be effective on the proviso that the terms contained in this Agreement will
apply to the Customer’s purchase from Limelight unless otherwise agreed in writing between the parties.
3.3. Any purchase order received by Limelight cannot be cancelled by the Customer without the written consent of Limelight.
3.4. Limelight may withdraw a Product from an approved purchaser order if such Products are not available at
the time of delivery. Limelight will consult with the Customer in respect of the supply of alternative Products
and Limelight will then submit to the Customer a Revised Quote to be accepted by the Customer pursuant tothe terms
of clause 2.7 of these Terms of Trade
4. Price Lists
- 4.1. All Products supplied by Limelight are sourced from third parties
4.2. All Product price lists published by Limelight are for the Customer’s information only and are subject to change without notice.
4.3. Limelight does not warrant that the Products set out in any price lists will be available or available at the price listed.
5. Product Delivery
- 5.1. Prior to or upon the Delivery of all or some of the Products contained in the Quote, Limelight will provide
the Customer with a Tax Invoice for the Products contained in the Delivery specifying:
(a) the number and type of Products supplied or to be supplied with the Delivery or;
(b) the approximate date of the Delivery and the order number for the Delivery; and
(c) the amount owing by the Customer to Limelight in respect of the Delivery including any delivery and
handling charges
(d) the terms of payment will be included in the Tax Invoice
5.2. Limelight will endeavour to make the Delivery during regular business hours.
5.3. Limelight will not be liable for any loss or damage incurred by the Customer or the Customer’s agents or
clients for delays in the Delivery of Products.
5.4. The Customer will do all things required to facilitate and accommodate the Delivery of Products by Limelight including
but not limited to providing timely and safe access to the Site for the supply of Products.
5.5. Limelight reserves the right to charge for any costs and expenses incurred in the event that the Customer
does not comply with their obligations under the terms of this Agreement in respect of this clause 5 including
any costs and expenses incurred by Limelight where there is more than one Delivery to satisfy the Purchase
Order and Quote and where the Customer requires Products to be delivered to more than one location.
6. Defects
- 6.1. The Customer must inspect all Products at the time of the Delivery and sign the delivery documents
provided by Limelight or its agent.
6.2. At the time of the Delivery the Customer must notify Limelight of any alleged defect, shortages, damage or
failure to comply with the Tax Invoice relating to the Delivery.
6.3. The Customer will not attempt to remedy any defect in a Product without the prior written consent of
Limelight.
6.4. The Customer will give Limelight a reasonable opportunity to inspect the Products upon notification of a
defect in the Delivery.
6.5. If the Customer does not notify Limelight of any alleged defect, shortage, damage or failure to comply with the
Tax Invoice at the time of the Delivery the Product provided by Limelight at the Delivery shall be deemed to be in
accordance with these Terms of Trade and free from any defect or damage.
6.6. Delivery costs on returned Products will not be refunded.
7. Retention of Title
- 7.1. Notwithstanding the Delivery of any Products to the Customer, until such time as the Customer has effected full
payment for the Products [and any Services and any other payments due to Limelight from the Customer where it is
reasonable to expect the Customer to have paid for these latter items] the following terms apply to the Products supplied
to the Customer in the Delivery:
(a) legal title to the Products will remain with Limelight;
(b) the risk in the Products will pass to the Customer on delivery to the Customer or its agent;
(c) the relationship between Limelight and the Customer will be fiduciary;
(d) the Customer will: (i) hold the Products as bailee for Limelight; (ii) keep the Products separate from
other goods; and (iii) label the Products so that they are identifiable as the goods of Limelight.
7.2. The Customer is not an agent of Limelight in any permitted sale of the Products by the Customer.
7.3. In the event the Customer does not pay for the Delivery of the Products referred to in clause 7.1 then
Limelight may upon written notice to the Customer take possession of the Products and may without notice
sell the Products on such terms and in such manner as Limelight determines and Limelight will be entitled to
claim from the Customer all expenses incurred. For the purposes of recovering possession in accordance
with this clause 7, the Customer irrevocably authorises and licenses Limelight and its servants and agents to
enter any premises where any Products may be stored to take possession of the Products. The Customer
will provide all relevant information and assistance reasonably required to enable Limelight to gain
reasonable access to the premises where the Products are located and to take possession of the Products
in accordance with this clause 7.3.
7.4. The Customer may make no claim against Limelight in respect of any entry to its premises or disposal of the
Products pursuant to clause 7.3.
7.5. If the Customer fails to comply with clause 7.1(d) and mixes or converts goods to other objects whether by
the process of manufacture or otherwise and whether or not such mixture or conversion renders the
Products unidentifiable, Limelight will remain entitled to retake possession of the Products, if possible.
8. Delivery of Services
- 8.1. Limelight will provide the Customer with a Tax Invoice for the Delivery of each Service, specifying:
(a) a description of the Services supplied or to be supplied;
(b) a proposed date for provision of the Services; and
(c) the amount owing or to be paid by the Customer to Limelight in respect of the Delivery of that
Service.
8.2. Limelight will use reasonable commercial endeavours to supply the Services during regular business hours.
8.3. The delivery times made known to the Customer for provision of the Services are estimates only and
Limelight will not be liable for late delivery or non-delivery and under no circumstances shall Limelight be
liable for any Loss, damage or delay occasioned to the Customer or the Customer’s customers or clients
arising from late or non-delivery.
8.4. The Customer authorises Limelight to:
(a) provide the Services as specified in the Quote or Tax Invoice;
(b) have full access to the Customer’s premises for the purpose of the Delivery of the Service; and
(c) do all things necessary to provide the Services and to discharge its obligations under this
Agreement.
8.5. Where the consent, approval or authority of a person or organisation other than the Customer is required in order
to enable Limelight to provide the Services or discharge its obligations under this Agreement without
infringing the rights of any other person, the Customer must notify Limelight of that requirement and details
of the third party and obtain (or assist Limelight to obtain) that consent, approval or authority before
Limelight commences to provide that part of the Delivery of the Services for which the consent, approval or
authority is required.
8.6. The Customer must provide Limelight with reasonable access to any premises required for the Delivery of
the Services during reasonable hours and the Customer must ensure that the premises are suitably
equipped and comply with all Limelight’s reasonable requirements.
8.7. The Customer must obtain all necessary consents, permits, licences or other authorities from the owner of
any relevant equipment or premises, any governmental, municipal, local or other competent authorities and
others whose permission is or may be necessary for the supply of Services.
9. Pricing and Payment
- 9.1. Unless stated otherwise in the Special Conditions of the Schedule, Limelight must receive payment for the
Products contained in the applicable Tax Invoice prior to or upon delivery of the Products.
9.2. Limelight must receive payment for Services within 7 days from the date of the applicable Tax Invoice
subject to any additional payment terms specified in the Special Conditions of the Schedule.
9.3. Products and Services will be invoiced in accordance with clauses 5 and 8 respectively.
9.4. The Customer will pay Limelight all monies owing on the terms contained in this Agreement without set-off or deduction.
9.5. Dishonoured cheques will attract a $20 handling fee in addition to any applicable bank charges.
9.6. Limelight reserves the right to charge an additional 5% on the balance of the amount due to Limelight from the Customer
after 7 days has passed from the date due for payment on any Tax Invoice and the parties
agree that this amount is a fair and reasonable estimate of the damages incurred and continuing to be
incurred by Limelight where the payment has not been made by the Customer.
10. GST
- 10.1. Unless otherwise expressly stated, all amounts specified by Limelight are exclusive of GST.
10.2. If GST is imposed on a Taxable Supply made by one party ( Limelight) to another party (the Customer)
under or in connection with this Agreement:
(a) the price of the Taxable Supply shall be equal to the GST-exclusive consideration that the
Recipient must pay to Limelight for the Taxable Supply under this Agreement increased by an
amount (the GST Amount) equal to the amount of GST payable by Limelight on that Taxable
Supply; and
(b) the GST Amount is, subject to Limelight issuing a Tax Invoice to the Recipient, payable at the same
time and in the same manner as the consideration to which it relates.
10.3. The parties agree to assist each other as appropriate to implement the GST Act if applicable.
10.4. Each party must provide to the other all information required to enable Tax Invoices to be issued in
accordance with this Agreement.
10.5. If the Recipient does not pay the amount of the GST liability incurred by Limelight by the due date required
under this clause 10 then, in addition, the Recipient must pay Limelight interest on the amount outstanding
from the due date until paid at the same rate from time to time as is payable by a taxpayer to the
Commissioner of Taxation on overdue GST.
11. Warranties
- 11.1. The Customer warrants and represents that:
(a) it has the authority and entitlement to enter into and to perform its obligations under this
Agreement;
(b) it has undergone all necessary checks and obtained all necessary consent from related or third
parties to ensure that the Products and Services supplied by Limelight will not interfere with the
Customer’s Site or any part of the Site or any adjoining area or part thereof which may or may not
be the property of the Customer;
(c) except as provided in this Agreement, it has not relied on any inducement, representation or
statement made by or on behalf of Limelight in purchasing the Products or Services other than the
contents of this Agreement;
11.2. The Customer hereby agrees that
(a) no warranty, condition, description or representation in relation to the Products or Services is given
by Limelight expressly or impliedly by this Agreement; and
(b) all warranties, terms and conditions in relation to the state, quality or fitness of the Products or
Services and of every other kind whether expressed or implied by use, statute or otherwise is
excluded to the full extent permitted by law.
11.3. Limelight warrants and represents to the Customer that:
(a) it will provide the advice in respect of the supply of the Products and it will perform all Services with
care, skill and diligence; and
(b) all Products are supplied in accordance with Australian Industry Standards.
11.4. All Products are covered by the warranty as specified by the Manufacturer of the Product and supplied in
accordance with the product standards detailed by the Manufacturer.
11.5. The Customer may notify Limelight of any Manufacturer warranty claim in the first instance and
Limelight will notify the Manufacturer.
11.6. Services performed by Limelight carry a 12 month warranty.
11.7. Limelight will not bear any responsibility for the performance or state of the Products other than the express
statements contained in this Agreement
11.8. Any Product used outdoors must be maintained regularly and in accordance with the Manufacturers
Guidelines. Such maintenance is the responsibility of the Customer.
12. Limitation of Liability & Indemnity
- 12.1. One party ( the Indemnifying Party ) will at all times indemnify and keep indemnified, the other party
( the Indemnified Party ) and its officers, employees and agents from and against any Loss that the Indemnified
Party or its officers, employees and agents may pay, suffer, incur or sustain arising directly from:
(a) any breach by the Indemnifying Party of any provision of this Agreement; or
(b) any negligent act or omission of the Indemnifying Party or any of its officers, employees and agents.
12.2. Limelight shall not be held liable for any Loss which arises from the delivery or provision of Products or
Services including, but not limited to, damage to property and the injury or death of persons.
12.3. In no event shall either party be liable to the other for any Consequential Loss arising from any provision of this
Agreement or from the supply and delivery of Products or Services by Limelight to the Customer, even if
the other party has been advised of the possibility of such damages.
12.4. The liability of Limelight for any breach of this Agreement or for the supply and delivery of Products or
Services by Limelight, is limited to the fees paid or payable by the Customer in relation to the Products or
Services connected with the breach.
12.5. To the extent that Limelight’s liability is not excluded under the preceding provisions in clauses 11 and 12,
Limelight’s liability to the Customer for any breach of any provision of this Agreement and for any liability
under the Trade Practices Act 1974 (Cth) or any other legislation of the Commonwealth of Australia or the
state in which the supply of Products and Services occurs is limited to:
(a) if the breach relates to the Products: (i) the repair or replacement of those Products; or (ii) paying
the cost of having those Products repaired or replaced; and
(b) if the breach relates to the Services: (i) resupplying those or equivalent Services; or (ii) paying the
cost of having those Services resupplied.
12.6 The Customer acknowledges that the Customer is wholly and absolutely responsible for taking the
appropriate measures to minimise any risk of damage to the Customer’s property and/or any persons on the
Customers property or associated with the Delivery of the Products or Services.
13. Termination
- 13.1. Without prejudice to any other rights Limelight has under this Agreement, Limelight may terminate this
Agreement immediately by notice in writing if:
(a) The Customer is in breach of any term of this Agreement and such breach is not remedied within 7
days of written notice by Limelight to the Customer;
(b) The Customer is subject to an Insolvency Event; or
(c) The Customer, if an individual, is declared or declares bankruptcy or refuses or is unable to pay all
debts as and when they are due to Limelight.
13.2. Upon termination of this Agreement pursuant to clause 13.1;
(a) all further obligations of Limelight under this Agreement will cease; and
(b) all amounts due to Limelight by the Customer which are outstanding will become immediately due
and payable.
13.3. The termination or expiration of this Agreement does not affect the rights and remedies of either party
arising prior to the date of termination or at law.
14. Disclaimer
- 14.1. Limelight will exercise all reasonable care to ensure that the installers of the Products adequately protect
and bury any cabling or wiring with due regard to the visual aesthetics of the Customer’s Site.
14.2. The Customer must previously notify all persons working on or adjoining the Site of any cabling, wiring or
other hazardous materials present within and adjoining the Site. Without limitation to clause 11, Limelight
will not be liable for any damage to any installation provided by Limelight or another person engaged to
install Products pursuant to this Agreement where that damage is caused by the Customer or any third
party.
15. Force Majeur
- 15.1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such
delay is due to a Force Majeure Event.
15.2. If a delay or failure of a party to perform its obligations is caused or anticipated due to a Force Majeure
Event, the performance of that party’s obligations will be suspended.
15.3. If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 10 days
either party may immediately cancel any Quote or Purchase Order or Tax Invoice for which the Delivery has
not commenced, by providing notice in writing to the other party.
16. Notices
- Any communication under or in connection with this Agreement must be in writing and must be addressed to
the address of Limelight and the Customer as shown in Item 2 of the Schedule. The notice must be
emailed, faxed or delivered by hand or posted by pre-paid post to the addressee and in the case of pre-paid
post, delivery will be deemed on the 3rd Business Day after the date of posting.
17. Guarantee
- 17.1. In the event that the Customer is a corporate entity, the director(s) of the Customer as specified in Item5 of the
Schedule [ the Guarantor(s)] hereby guarantee to Limelight that the Customer will comply with all of its obligations
under this Agreement.
17.2. The Guarantor(s) agree(s) to indemnify Limelight for any loss or damage suffered by Limelight as a result of the
Customer not complying with its obligations under this Agreement.
17.3. The guarantee and indemnity in this clause 17 is a continuing guarantee and indemnity and will not come to an
end until released in writing by Limelight.
18. Relationship of the parties/p>
- 8.1. The relationship of the parties shall be limited to the performance of the rights and obligations of the parties under
this Agreement.
18.2. The parties shall not be partners, servants, agents, franchisors or franchisees of each other and nothing in this
Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between
Limelight and the Customer.
19. General/p>
- 9.1. No waiver shall be effective unless it is in writing and signed by the party against whom that waiver is
claimed. No waiver shall be or be deemed to be a waiver of any other or subsequent breach.
19.2. This Agreement constitutes the entire agreement, understanding and arrangement (express or implied)
between the parties relating to the matters dealt with in or necessary to implement this Agreement and
supersedes and cancels any previous agreement, understanding, arrangement or representation by either
party relating thereto, whether written or oral.
19.3. Each party is to bear its own costs in relation to the preparation and execution of this Agreement.
19.4. This Agreement may only be amended, supplemented or novated by a document in writing executed by all
of the parties.
19.5. Each party is to make all applications, execute all documents and do all acts and things reasonably required
to implement and to carry out its obligations under this Agreement.
19.6. The Customer may not directly or indirectly (including by way of sub-contract, security, reconstruction or
amalgamation) assign, transfer or otherwise dispose of any of its rights under or interest in, or any of its obligations
or liabilities under, or in connection with, or arising out of, any of this Agreement, except with the
prior written consent of Limelight.
19.7. Limelight may at any time assign, licence or novate any of its rights under or interest in, or any of its
obligations or liabilities under, or in connection with, or arising out of, this Agreement.
19.8. This Agreement may be executed in any number of counterparts (including by facsimile and electronic
transmission) and, provided that both parties have executed and exchanged a counterpart of this
Agreement, the counterparts together shall constitute a binding and enforceable agreement between the
parties.
19.9. If any provision of this Agreement is held invalid, unenforceable or illegal for any reason it will be severed
from the Agreement and the remainder of the Agreement will remain in full force and effect.
19.10. Each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth
of Australia, and the courts competent to determine appeals from those courts, with respect to any
proceedings which may be brought at any time relating in any way to this Agreement; and
(b) waives any objection it may have now or in the future have to the venue of proceedings, and any
claim it may now or in the future have that any proceedings have been brought in an inconvenient
forum, where that venue falls within paragraph (a) of this clause.
20. Interpretation/p>
- 20.1. In this Agreement, unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) an obligation or liability assumed by, or a right conferred on 2 or more parties, binds or benefits all
of them jointly and each of them severally;
(c) the expression "person" includes an individual, the estate of an individual, a corporation, an
authority, an association or a joint venture (whether incorporated or unincorporated), a partnership
and a trust;
(d) a reference to any party includes that party's executors, administrators, successors and assigns,
including any person taking by way of novation and, in the case of a trustee, includes any
substituted or additional trustee;
(e) a reference to any document (including this Agreement) is to that document as varied, novated,
ratified or replaced from time to time in accordance with the terms of this Agreement;
(f) a reference to any statute or to any statutory provision includes any statutory modification or reenactment
of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations,
rules and statutory instruments (however described) issued under it;
(g) words importing the singular include the plural (and vice versa), and words indicating a gender
include every other gender;
(h) references to parties, clauses or schedules, are references to parties, clauses and schedules to or
of this Agreement, and a reference to this Agreement includes any schedule to this Agreement;
(i) where a word or phrase is given a defined meaning, any other part of speech or grammatical form
of that word or phrase has a corresponding meaning;
(j) expressions used in this Agreement that are defined in the Copyright Act 1968 (Cth) or the Circuit
Layouts Act 1989 and that are not separately defined in this Agreement, have the meanings
attributed to them in such Acts;
(k) the word "includes" in any form is not a word of limitation;
(l) a reference to "$" or "dollar" is to Australian currency (unless otherwise stated);
(m) references to payments to any party to this Agreement will be construed to include payments to
another person upon the direction of such party; and
(n) if any day appointed or specified by this Agreement for the payment of any money or doing of any
thing falls on a day which is not a Business Day, the day so appointed or specified shall be deemed
to be the next Business Day.
21. Definitions/p>
- 21.1. In this Agreement, unless otherwise indicated by the context:
(a) Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the
State of New South Wales;
(b) Consequential Loss means any form of incidental or indirect Loss including any third party Loss,
loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss
and any increased operating costs suffered or incurred by any person whether arising in contract or
tort (including negligence) or under any statute;
(c) Customer means the person identified in Item 2 in the Schedule;
(d) Force Majeure Event means any act of God, nature, catastrophes; governmental acts, omissions or
enactments; national emergency, insurrection, riots, wars, fire, flood, explosion, power failure; or
strikes, lock-outs or other difficulties beyond the reasonable control of the parties to this
Agreement;
(e) GST means the goods and services tax implemented under the GST Law.
(f) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related
Commonwealth legislation, and includes all regulations, determinations and rulings associated with
or made under any such legislation;
(g) Insolvency Event means any of the following events: (i) a liquidator, provisional liquidator, receiver
or receiver and manager is appointed to a body corporate; (ii) a body corporate enters into or
resolves to enter into a scheme of arrangement, deed of company arrangement or composition
with, or assignment for the benefit of, all or any class of its creditors or members, or it proposes a
re-organisation, moratorium or other administration involving any of them; (iii) a body corporate
resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so or is
otherwise wound up or dissolved; (iv) a body corporate refuses or is unable to pay its debts as and
when they fall due or is deemed unable to pay its debts under any applicable legislation;
(h) Loss means all liabilities, losses, damages, expenses and costs (including legal costs on a full
indemnity basis and whether incurred or awarded and disbursements reasonably incurred)
including fees of any kind and nature whether arising in contract or tort (including negligence) or
under any statute;
(i) Personal Information means information or an opinion about an individual as defined in Section 6 of
the Privacy Act (Cth) which is collected, used, disclosed, stored or handled by Limelight or
Customer for the purposes of this Agreement;
(j) Products means the products contained in Item 3 of the Schedule and includes any software
embedded in those products but excludes the Services;
(k) Services means the services identified in Item 3 of the Schedule and excludes all Products;
(l) Limelight means Limelight Illuminations Pty Ltd (ACN 126 014 640), Studio 5, 716 New South Head
Road, Rose Bay NSW 2029;
(m) Tax Invoice means the description contained in this Agreement and includes the same meaning as
in the GST Law.
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