“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 Terms and 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 Goods and services displayed are subject to availability. If any goods or services are not available, GAN will inform the Client within  working days. In the case of non-availability of goods or services:
2.6 The Client must provide GAN with specific requirements, if any, in relation to the goods or services.
2.7 GAN may, where reasonably necessary, vary or amend these T+Cs by written notice to the Client. Any variations or amendments will apply to orders placed after the notice date.
3.1 Prices quoted or displayed 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 vary 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 seek to vary its price for the goods or services to take account of any such change, by notifying the Client
3.4 If GAN provides the Client with notice of the kind referred to in clause Error! Reference source not found., the Client may:
4.1 Unless credit is provided under clause 4.2, payment for goods and services must be made in full upon placement of order. Goods will not be dispatched until full payment has been confirmed.
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, where reasonably necessary, be revoked or amended by GAN 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:
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:
6.2 GAN will exercise its right of entry (including the use and extent of force) under subclause 6.1(e) in accordance with applicable laws.
6.3 GAN retains all intellectual property rights concerning the copyright, designs and other creative works, including but not V-6753221:2 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 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.
7.3 GAN and the Client agree to contract out of sections 96, 125, 129, 142 and 143 of the PPSA
7.4 To the extent permitted by the PPSA, the Client agrees that:
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 from the point at which the goods are dispatched from GAN’s premises, or otherwise taken from GAN’s premises by the Client.
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 Subject to any liability imposed under the ACL, 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
9.4 The Client is responsible to ensure that the goods are used in accordance with all applicable electrical safety laws.
10.1 Subject to clause 10.6 GAN will arrange for the delivery of goods to the Client at a nominated delivery address within Australia.
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 will designate the method of delivery of the goods. If the Client requires a more costly method of delivery, the Client must reimburse GAN for the extra cost involved.
10.4 GAN may make part delivery of goods or provision of services. GAN may invoice the Client for the goods or services delivered.
10.5 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.
10.6 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.
10.7 If agreed that the Client will collect the goods:
10.8 The Client must notify GAN within [48 hours] of delivery:
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:
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 any liability imposed by the ACL.
11.6 The Client acknowledges that:
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 may, where reasonably necessary, provide the Client with written notice of any change to the specifications of the goods.
12. Cancellation and Returns
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 and processed by GAN.
12.3 Where GAN agrees to accept a return of non-defective goods for change-of-mind reasons:
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.