TERMS OF TRADE

Introduction

The Customer agrees to purchase the Products or Services or both from Supplier and Supplier agrees to supply such Products and/or Services on the terms and conditions set out in this Agreement.

The Agreement comprises both the Cover Page and these Terms of Trade.

The Terms of Trade prevail to the extent of any inconsistency with the details set out in the Cover Page.

Capitalised words have the meaning given to them in the Cover Page and in clause 21 of these Terms of Trade.

Quotations

All quotations for Products and Services provided by Supplier will remain valid for 90 days from the date of the quotation unless otherwise specified in the Cover Page.

Any amendments or variations to a quotation supplied by Supplier must be approved by Supplier in writing including by means of a Tax Invoice.

The Supplier may withdraw a quotation in whole or in part at any time upon written notice to the Customer including prior to the expiration of the 90 validation period referred to in clause 2.1.

All quotations are subject to the Supplier's appraisal of site conditions following a visual inspection of the site. The Supplier reserves the right to revise the quotation 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 or cabling access constraints that were not apparent during the site inspection or that have arisen since the on site inspection.

Purchase orders

The Customer may complete a purchase order by signing and returning a copy of the Supplier's quotation.Any purchase order supplied by the Customer in response to a quotation by Supplier must be approved by Supplier in writing to be effective.

Any purchase order received by Supplier cannot be cancelled by the Customer without the written consent of Supplier.

An order is accepted when the Customer receives written notification from the Supplier acknowledging the order or, alternatively, when the Customer receives a Tax Invoice for the order as outlined in clauses 5 and 8.

The Supplier may withdraw a Product or Products from an approved purchaser order if such Products are not available at the time of delivery.

The Supplier will consult with the Customer to supply alternative Products and agreed by the Customer.

Any terms and conditions attached to or incorporated in any purchase order from the Customer will not form part of the Agreement and acceptance of the purchase order by Supplier will not be construed as acceptance of any such terms or conditions attached to the purchase order.

Price Lists

All Product price lists published by Supplier are for the Customer's information only and are subject to change without notice.

Supplier does not warrant that the Products set out in any price lists will be available or available at the price listed.

Product Delivery

Supplier will provide the Customer with a Tax Invoice for each delivery of Products specifying:the number and type of Products supplied with that delivery or to be supplied;
the approximate date of delivery and the order number for the delivery; and
the amount owing by the Customer to Supplier in respect of that delivery including any delivery and handling charges.

Supplier will use reasonable commercial endeavours to deliver the Products during regular business hours at a location nominated by the Customer in the metropolitan area of Sydney, New South Wales.

The delivery times made known to the Customer are estimates only and Supplier will not be liable for a late delivery or a non-delivery and under no circumstances shall Supplier 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.

The Customer shall make all arrangements to take delivery of the Products where they are tendered for delivery.

Additional charges at the sole discretion of the Supplier will apply if there is more than one delivery and/or different delivery locations for the supplied Products.

Defects

The Customer must inspect all Products at the time of delivery and sign the delivery documents provided.

At the time of delivery the Customer must notify Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the Tax Invoice.

The Customer will not attempt to remedy any defect in a Product without the prior written consent of the Supplier. The Customer shall give Supplier a reasonable opportunity to inspect the Products upon notification of a defect in the delivery.

If the Customer does not notify Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the Tax Invoice at the time of delivery the Product shall be conclusively presumed to be in accordance with these Terms of Trade and free from any defect or damage.

Delivery costs on returned Products will not be refunded.

Retention of Title

Notwithstanding delivery of the Products to the Customer, until the Customer has effected full payment for the Products and any other products previously supplied by Supplier:legal title to the Products will remain with Supplier;
the risk in the Products will pass to the Customer on delivery to the Customer or its agent;
the relationship between Supplier and the Customer will be fiduciary;
the Customer will:
(i) hold the Products as bailee for Supplier;
(ii) keep the Products separate from other goods; and
(iii) label the Products so that they are identifiable as the goods of Supplier.

The Customer is not an agent of Supplier in any permitted sale of the Products by the Customer.

In the event the Customer breaches clause 8.1 of this Agreement, Supplier may upon written notice to the Customer retake possession of the Products and may without notice sell the Products on such terms and in such manner as Supplier determines and Supplier will be entitled to deduct all expenses incurred.For the purposes of recovering possession and without limiting the generality of the foregoing, the Customer irrevocably authorises and licenses Supplier and its servants and agents to enter any premises where any Products may be stored and to take possession of the Products. The Customer will provide all relevant information and assistance reasonably required by Supplier to ensure Supplier gains access to and takes possession of the Products in accordance with this clause 7.3.

The Customer may make no claim against Supplier in respect of any entry to its premises or disposal of the Products pursuant to clause 7.3.

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, Supplier will remain entitled to retake possession of the Products, if possible.

Service Delivery

Supplier will provide the Customer with a Tax Invoice for each Service delivery, specifying:a description of the Services supplied or to be supplied;
a proposed date for provision of the Services; and
the amount owing or to be paid by the Customer to Supplier in respect of that Service delivery.

Supplier will use reasonable commercial endeavours to supply the Services during regular business hours.The delivery times made known to the Customer for provision of the Services are estimates only and Supplier will not be liable for late delivery or non-delivery and under no circumstances shall Supplier 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.

The Customer authorises Supplier to:
provide the Services as specified in the quotation or Tax Invoice;
have full access to the Customer's premises; and
do all things necessary to provide the Services and to discharge its obligations under this Agreement.

Where the consent, approval or authority of a person other than the Customer is required in order to enable Supplier to provide the Services or discharge its obligations under this Agreement lawfully and without infringing the rights of any person, the Customer must notify Supplier of that requirement and details of the third party and obtain (or assist Supplier to obtain) that consent, approval or authority before Supplier commences to provide that part of the Services for which the consent, approval or authority is required.

Since the Services are to be supplied at the Customer's premises, Supplier must be given access to those premises during reasonable hours for that purpose and the Customer shall ensure that the premises are suitably equipped and comply with all Supplier's reasonable requirements.

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.

Pricing and Payment

Unless stated otherwise on the Cover Page, Supplier must receive payment for the Products outlined in the applicable Tax Invoice prior to delivery of the Products.

Supplier must receive payment for the Services within seven (7) Business Days from the date of the applicable Tax Invoice subject only to any payment term specified in the Cover Page.

Products and Services will be invoiced in accordance with clauses 5 and 8 respectively.

The Customer will pay Supplier all monies owing under this Agreement without set-off or deduction. Subject to clause 9.1, the Customer is not obliged to pay a Tax Invoice until delivery of the Products or commencement of Service delivery, as applicable. Dishonoured cheques will attract a $20 handling fee in addition to any applicable bank charges. Supplier reserves the right to charge interest on any late payments until payment is made in full at the rate equivalent to 2 percentage points above the overdraft rate charged on ANZ overdraft accounts over [insert details] for accounts more than 7 days in arrears from time to time.

GST

Unless otherwise expressly stated, all monetary amounts specified by Supplier are exclusive of GST.

If GST is imposed on a Taxable Supply made by one party (the Supplier) to another party (the Recipient) under or in connection with this Agreement:the price of the Taxable Supply shall be equal to the GST-exclusive consideration that the Recipient must pay to the Supplier for the Taxable Supply under this Agreement increased by an amount (the GST Amount) equal to the amount of GST payable by the Supplier on that Taxable Supply; and the GST Amount is, subject to the Supplier issuing a Tax Invoice to the Recipient, payable at the same time and in the same manner as the consideration to which it relates.

The parties agree to assist each other as appropriate to implement the GST Act if applicable.

Each party must provide to the other all information required to enable Tax Invoices to be issued in accordance with this Agreement.

If the Recipient does not pay the amount of the GST liability incurred by the Supplier by the due date required under this clause 10 then, in addition, the Recipient must pay the Supplier 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.

Warranties

The Customer agrees that:it has the authority to enter and to perform its obligations under this Agreement;
it has undergone all necessary checks to ensure that the Products will not interfere with the Customer's flora and fauna; except as provided in this Agreement, it has not relied on any inducement, representation or statement made by or on behalf of Supplier in purchasing the Products or Services;no warranty, condition, description or representation in relation to the Products or Services is given by Supplier expressly or impliedly by this Agreement; and 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.

Supplier warrants and represents to the Customer that:
it will render the Services with care, skill and diligence; and
all Products are supplied in accordance with Australian Industry Standards.

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. The Customer may notify the Supplier of any Manufacturer warranty claim in the first instance and the Supplier will notify the Manufacturer.

Services performed by the Supplier carry a 12 month warranty.

Any Product used outdoors must be maintained regularly and in accordance with the Manufacturers Guidelines. Such maintenance is the responsibility of the Customer.

Limitation of Liability & Indemnity

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:any breach by the Indemnifying Party of any provision of this Agreement; or any negligent act or omission of the Indemnifying Party or any of its officers, employees and agents.

The Supplier 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 flora or fauna.

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 Supplier to the Customer, even if the other party has been advised of the possibility of such damages.

The liability of Supplier for any breach of this Agreement or for the supply and delivery of Products or Services by Supplier, is limited to the fees paid or payable by the Customer in relation to the Products or Services connected with the breach.

To the extent that Supplier's liability is not excluded under the preceding provisions in clauses 11 and 12, Supplier'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) is limited to (at Supplier's option):if the breach relates to goods: (i) repairing or replacing those goods; or (ii) paying the cost of having those goods repaired or replaced; and
if the breach relates to services: (i) resupplying those or equivalent services; or (ii) paying the cost of having those services resupplied.

Termination

Without prejudice to any other rights Supplier has under this Agreement, Supplier may terminate this Agreement immediately by notice in writing if:
The Customer is in breach of any term of this Agreement and such breach is not remedied within five (5) Business Days of written notice by Supplier;
The Customer is subject to an Insolvency Event; or
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.

Upon termination of this Agreement pursuant to clause 13.1; all further obligations of Supplier under this Agreement will cease; and
all amounts outstanding will become immediately due and payable.

The termination or expiration of this Agreement does not remove the rights and remedies of either party arising prior to the date of termination or at law.

Disclaimer

The Supplier ensures that all due care is applied to adequately protect and bury any low voltage cabling installed by the Supplier away from plain view whilst balancing the visual aesthetics of the Customer’s garden, associated water features and ornaments.

The Customer must ensure that all persons (including any gardening or lawn mowing contractors) are made aware of any low voltage cabling present within the garden, lawns, rockery beds and surrounds. Without limitation to clause 11, the Supplier will not be liable for any damage to cabling installed by the Supplier caused by the Customer or any third party.

Force Majeure

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.

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.

If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds ten (10) Business Days either party may immediately cancel any purchase order for which delivery has not commenced, by providing notice in writing to the other party.

Notices

Any communication under or in connection with this Agreement must be in writing and must be addressed to the premises of Supplier and the Customer as shown on the Cover Page. It must be delivered by hand or posted by pre-paid post to the address and in the case of pre-paid post, delivery will be deemed on the third Business Day after the date of posting.

Guarantee

In the event the Customer is a corporate entity, the directors of the Customer guarantee to Supplier that the Customer will comply with all its obligations under this Agreement.

The directors of the Customer agree to indemnify Supplier for any Loss Supplier suffers as a result of the Customer not complying with its obligations under this Agreement.

The guarantee and indemnity in this clause 17 is a continuing guarantee and indemnity and they do not come to an end until released in writing by Supplier.

Relationship of the parties

The relationship of the parties shall be limited to the performance of the rights and obligations of the parties under this Agreement.The parties shall not be partners, servants, agents, franchisers 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 Supplier and the Customer.

General

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.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.

Each party is to bear its own costs in relation to the preparation and execution of this Agreement.

This Agreement may only be amended, supplemented or novated by a document in writing executed by all of the parties.

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.

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 Supplier.

Supplier 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.

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.

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.

Each party irrevocably:submits to the non-exclusive jurisdiction of the courts of New South Wales, 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 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.

Interpretation

In this Agreement, unless the context requires otherwise:
headings are for convenience only and do not affect interpretation;
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; 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;
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;a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
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;
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;
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;
the word "includes" in any form is not a word of limitation;
a reference to "$" or "dollar" is to Australian currency (unless otherwise stated); 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
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.

Definitions

In this Agreement, unless otherwise indicated by the context:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the State of New South Wales;
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;
Customer means the person identified on the Cover Page;
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;
GST means the goods and services tax implemented under the GST Law.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;
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;
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;
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 Supplier or Customer for the purposes of this Agreement;
Products means the products listed on the Cover Page and includes any software embedded in those products but excludes the Services;
Services means the services identified in the Cover Page and excludes all Products;
Supplier means Limelight Illuminations Pty Ltd (ACN 126 014 640), Studio 5, 716 New South Head Road, Rose Bay NSW 2029;
Tax Invoice has the same meaning as in the GST Law.