“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended; "Client" means the person, jointly and severally if more than one, acquiring goods or services from GAN; “consumer” is as defined in the ACL; “contract” means the contract for the provision of goods and services by GAN to the Client; "GAN" means Gardens At Night (AUST) (ABN 35 131 274 176); "goods" means all lighting goods provided by GAN to the Client; "GST" means any applicable goods and services sales tax, broadbased consumption or value-added tax in relation to the goods, and all other applicable taxes, duties or imposts; "PPSA" means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended; "Quotation" means a written quotation provided by GAN to the Client concerning the proposed supply of goods or services; “services” means installation, design and other services provided by GAN to the Client; "T+Cs" means these Conditions of Sale.
2. Basis of Contract
2.1 Unless otherwise agreed by GAN in writing, these T+Cs apply exclusively to every contract and cannot be varied or replaced by any other conditions.
2.2 Any Quotation is valid for 60 days, is an invitation to treat only.
2.3 A contract is formed when GAN confirms its acceptance of an order from the Client.
2.4 GAN may in its discretion refuse to accept any order.
2.5 The Client must provide GAN with specific requirements, if any, in relation to the goods or services.
2.6 GAN may vary or amend these T+Cs by written notice to the Client at any time. Any variations or amendments will apply to orders placed after the notice date.
3.1 Prices quoted for the supply of goods and services include GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 If the Client requests any variation to the contract, GAN may increase the price to account for the variation. 3.3 Where there is any change in the costs incurred by GAN in relation to goods or services, GAN may vary its price for the goods or services to take account of any such change, by notifying the Client.
4.1 Subject to clause 4.2, payment for goods and services must be made in full prior to delivery.
4.2 If credit is offered, payment for goods and services must be made by the end of the month following the month in which the goods or services are invoiced.
4.3 GAN reserves the right to require payment of a deposit.
4.4 Payments must be made to GAN without set-off.
4.5 Payment terms may be revoked or amended at GAN’s sole discretion immediately upon giving the Client written notice.
4.6 The time for payment is of the essence.
5. Payment Default
5.1 If the Client defaults in payment by the due date of any amount payable to GAN, then all money which would become payable by the Client to GAN at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Client, and GAN may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Client interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus 2 per cent for the period from the due date until the date of payment in full;
(b) charge the Client for, and the Client must indemnify GAN from, all expenses and costs (including legal costs and expenses) arising from the default;
(c) cease or suspend supply of any further goods to the Client;
(d) by written notice to the Client, terminate any uncompleted contract with the Client.
5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at GAN's option where the Client becomes bankrupt or insolvent or enters into any scheme of arrangement or with or for the benefit of its creditors.
6. Passing of Property
6.1 Until GAN receives full payment in cleared funds for all goods and services supplied by it to the Client, as well as all other amounts owing to GAN by the Client:
(a) title and property in all goods remains vested in GAN and does not pass to the Client;
(b) the Client must hold the goods as fiduciary bailee and agent for GAN;
(c) the Client must keep the goods separate from its goods and maintain GAN's labelling and packaging;
(d) the Client must hold the proceeds of any sale of the goods on trust for GAN in a separate account with a bank whom the Client has not given security however failure to do so will not affect the Client's obligation to deal with the proceeds as trustee;
(e) in addition to its rights under the PPSA, GAN may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of GAN, and for this purpose the Client irrevocably licences GAN to enter such premises and also indemnifies GAN from and against all costs, claims, demands or actions by any party arising from such action.
6.2 GAN retains all intellectual property rights concerning the copyright, designs and other creative works, including but not limited to printed materials, designs, graphics and artwork used in connection with the provision of the goods.
7. Personal Property Securities Act
7.1 The PPSA applies to these T+Cs.
7.2 For the purposes of the PPSA, these T+Cs are a security agreement and GAN has a Purchase Money Security Interest in all present and future goods supplied by GAN to the Client and the proceeds of the goods; 7.3 The security interest arising under this clause 7:
(a) is a continuing interest irrespective of whether there are monies or obligations owing by the Client at any particular time; and
(b) attaches to the goods when the goods are collected or dispatched from GAN's premises and not at any later time.
7.4 Where permitted by the PPSA, the Client waives any rights to receive the documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 GAN and the Client agree to contract out of sections 96, 125, 129, 142 and 143 of the PPSA.
7.6 To the extent permitted by the PPSA, the Client agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for its benefit or which place obligations on GAN will apply only to the extent that they are mandatory or GAN agrees to their application in writing; and
(b) where GAN has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Client must immediately upon GAN's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by GAN to be relevant to its security position such agreements and waivers (including as equivalent to those above) as GAN may at any time require.
7.8 GAN may allocate amounts received from the Client in any manner GAN determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by GAN.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these T+Cs and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times, except as otherwise required by law or that is already in the public domain.
8. Risk and Insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Client immediately on the goods being delivered to the Client or taken from GAN’s premises.
8.2 The Client assumes all risk and liability for loss, damage or injury to persons or to property of the Client, or third parties, arising out of the installation, possession or use of the goods or services sold by GAN, unless recoverable from GAN on failure of any statutory guarantee under the ACL.
8.3 The Client acknowledges that the goods are provided for aesthetic purposes only and may not comply with Australian Standards. Compliance with Australian Standards is the Client's responsibility.
9. Performance of Agreement
9.1 Any period or date for delivery of goods specified by GAN is an estimate only and not a contractual commitment.
9.2 GAN will not be liable for any loss or damage suffered by the Client or any third party for failure to meet any estimated delivery date.
9.3 If GAN cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10.1 Subject to clause 10.6 GAN will arrange for the delivery of goods to the Client.
10.2 The Client will be responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch to the point of delivery.
10.3 GAN may make part delivery of goods or provision of services. GAN may invoice the Client for the goods or services delivered.
10.4 The Client indemnifies GAN against loss or damage suffered by GAN, its subcontractors or employees as a result of delivery, except where the Client is a consumer and GAN has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed, the Client is deemed to have taken delivery of the goods. The Client is liable for storage charges payable monthly on demand.
10.6 If agreed that the Client will collect the goods:
(a) the Client must collect the goods within 7 days of being advised they are ready;
(b) if the Client does not collect the goods within this time, it is deemed to have taken delivery of the goods and is liable for storage charges payable weekly on demand.
11.1 Except as the T+Cs specifically state, or as contained in any express warranty provided in relation to the goods or services, the contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
11.2 If the Client is a consumer nothing in these T+Cs restricts, limits or modifies the Client’s rights or remedies against GAN for a failure of a statutory guarantee under the ACL.
11.3 If the Client on-supplies goods to a person who is a consumer:
(a) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of GAN’s liability to the Client;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of GAN’s liability to the Client; howsoever arising under or in connection with the sale, installation, use of, storage or other dealings with the goods or services by the Client or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than stated in the Terms or any written warranty statement GAN is not liable to the Client in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Client or any third party.
11.5 GAN is not liable for any indirect or consequential losses or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party except to the extent of liability imposed by the ACL.
11.6 The Client acknowledges that:
(a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by GAN in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to GAN any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the Client's use.
11.7 Nothing in the T+Cs excludes or displaces any applicable State or Federal legislation which cannot be excluded.
11.8 Any description of the goods provided in a Quotation or invoice is given by way of identification only and does not constitute a contract of sale by description.
11.9 GAN reserves the right to change the specifications of the goods at any time without notice and without liability.
12.1 If GAN is unable to deliver or provide the goods or services, then GAN may cancel the Client’s order (even if it has been accepted) by written notice.
12.2 No purported cancellation or suspension of an order or part of it by the Client is binding on GAN once the order has been accepted.
13.1 The law of Victoria from time to time governs these T+Cs.
13.2 GAN's failure to enforce any of these T+Cs shall not be construed as a waiver of any of GAN's rights.
13.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the clause must be severed from these T+Cs without affecting the enforceability of the remaining terms.
13.4 A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.