“Agreement” means these Terms and Conditions of Sales between Maxprime International Pty Ltd ACN 112 060 125 trading as Prime LED (“PRIME LED”) and the Purchaser which applies whenever PRIME LED supplies Goods to the Purchaser.
“Purchaser” refers to the person or business to whom PRIME LED has agreed to supply the Goods.
“Goods” includes all present and after acquired goods supplied to the Purchaser by PRIME LED and all services supplied to the Purchaser by PRIME LED, pursuant to an order placed by the Purchaser.
- This Agreement supersedes any earlier terms or conditions wherever published or applying between PRIME LED and the Purchaser, and will be deemed to override all oral and written agreements, negotiations by either party prior to, or at the time of, the making of this Agreement. The Purchaser will be deemed to have accepted these Terms and Conditions of Sales if the Purchaser places any order or otherwise deals with PRIME LED after receiving notice of these Terms and Conditions of Sales, or if the Purchaser makes payment of any invoices to which these Terms and Conditions of Sales are The Purchaser will be deemed to have accepted these Terms and Conditions of Sales in the foregoing circumstances, despite any subsequent request by PRIME LED for the Purchaser to sign a copy of the Terms and Conditions of Sales or to otherwise acknowledge the Purchaser’s acceptance of this Agreement, and despite any omission or refusal of the Purchaser to do so.
- Any oral representation, warranty or promise whatsoever (other than those contained herein) made by any employee or agent of PRIME LED to the Purchaser does not form any part of this
- To the extent of any inconsistency, any terms and conditions of the Purchaser included in documents submitted to PRIME LED are expressly excluded and do not form part of this
- All prices published by PRIME LED from time to time are subject to change without notice. All quotations are in Australian Dollars (AUD), unless otherwise specified in writing. Quotations are valid for 30 days from the date of the quotation, unless otherwise specified in writing.
- All prices are strictly net of GST and any other tax or duty that may be payable. Where applicable, these will be charged separately. The Purchaser will pay for all freight, shipping, air cargo, insurance and courier charges unless otherwise specified in writing.
- The price is subject to variation in the event of changes in GST, other taxes or duties, exchange rates or the prices of materials or labour conditions.
- The price is subject to the Purchaser’s order being for the whole quantity stated in the quotation.
- Unless the Purchaser has written approval for credit, the Purchaser will pay a 30% deposit upon placement of order and will pay the remaining 70% prior to delivery. The order will not be processed until the deposit is paid. All payments are to be made in cash, by bank cheque, by electronic funds transfer or by credit card. If the Purchaser completes PRIME LED’s credit account application and obtains written credit approval, payment must be made within 14 days of PRIME LED’s invoice, unless otherwise agreed by PRIME LED in writing. PRIME LED has the right to withdraw credit at any time prior to the delivery of the whole of any order.
- The Purchaser may not withhold payment of any part of the price because of any dispute or claim.
- PRIME LED is not obliged to sell Goods to the Purchaser if:
- the Purchaser defaults in its payment obligations under this Agreement; and/or
- the Purchaser becomes bankrupt or goes into liquidation or goes into voluntary administration or receivership or is unable to pay its debts as they fall due.
- Without prejudice to any other remedies of PRIME LED at law or under this Agreement, upon the Purchaser’s failure to make payment in accordance with clause 8 of these Terms and Conditions of Sales, PRIME LED may charge interest on amounts not paid at the rate of 18% per annum calculated daily from the due date for payment until the date of payment of the balance outstanding from time to time, such interest payable on demand.
Legal title to Goods
- Except as otherwise provided herein, the goods supplied by PRIME LED to the Purchaser shall be at the Purchaser’s sole risk immediately on their delivery to the Purchaser.
- Property and title in the goods supplied by PRIME LED to the Purchaser will not pass to the Purchaser until such time as all goods supplied by PRIME LED to the Purchaser have been paid for in full. Until that time, the Purchaser shall store the goods, including goods into which the supplied goods have been mixed, in such a manner as to show clearly that they are the property of PRIME LED and shall upon PRIME LED’s demand deliver up such goods to PRIME LED. In default of such delivery, PRIME LED may by its servants and agents enter the Purchaser’s premises at any time without notice to repossess the goods.
- As provided for and subject to the Personal Property Securities Act 2010, until such time as the goods have been paid for in full, the Purchaser is at liberty to sell the goods, including goods into which PRIME LED’s goods have been mixed, in the ordinary course of its business, and the Purchaser shall hold the proceeds thereof in trust for PRIME LED and promptly account to PRIME LED for those proceeds in payment of the purchase price for the goods.
- The Purchaser will indemnify PRIME LED from any damages, costs, liabilities or penalties which PRIME LED may suffer or incur from the Purchaser’s failure to pay to PRIME LED all sums outstanding from the Purchaser to PRIME LED.
- All costs (including but not limited to legal costs on a full indemnity basis) incurred by PRIME LED in obtaining payment from the Purchaser or in endeavouring to trace the whereabouts of the Goods or obtaining or endeavouring to obtain possession thereof, whether by action or suit or otherwise, and all other transport, storage, sale, repossession and like expenses will be recoverable by PRIME LED from the Purchaser in addition to, and without prejudice to, PRIME LED’s other rights under this Agreement.
Cancellation of Order
- Orders cannot be cancelled except by agreement in writing by PRIME LED. Despite the cancellation of an order for any reason, the Purchaser must pay PRIME LED in full for any Goods which were especially procured for it, custom ordered, imported, manufactured or made to order for PRIME LED at the Purchaser’s request or of a particular nature not normally stocked by PRIME LED.
- Orders or balance of orders may be cancelled by PRIME LED in the event of any failure by the Purchaser to adhere to the terms of this Agreement or if PRIME LED suspects the credit worthiness of the Purchaser.
- Any times quoted for delivery are estimates only and PRIME LED will not be liable to the Purchaser to make good any damage or loss whether arising directly or indirectly out of the delay in delivery.
- Notwithstanding anything to the contrary contained in this Agreement, risk in the Goods passes to the Purchaser from the earlier of:
- delivery to the Purchaser;
- the time the Goods are delivered to a carrier (whether named by the Purchaser or not) for transportation to the Purchaser; or
- the Goods being within the Purchaser’s direction or control.
- Without prejudice to clause 19 of these Terms and Conditions of Sales, where the Purchaser requests delivery to any site including the Purchaser’s premises, PRIME LED will deliver the Goods to that location. If the location is unattended at the time of delivery, PRIME LED will not be responsible for any damage to or loss of the Goods howsoever arising.
- Unless otherwise agreed in writing, PRIME LED will not effect insurance for any Goods during their transportation.
- Goods will be dispatched without special casing or packaging. If special casing or packaging is required this will be charged as an additional cost to the Purchaser. PRIME LED will not accept responsibility for breakage, damage or loss in transit.
- PRIME LED has the right to fulfil any order by progressive deliveries, each of which must be paid for as a separate liability whether invoiced separately or not.
Acceptance and Claims
- If, within seven (7) days of the date of delivery or collection of the Goods, the Purchaser does not provide written notice to PRIME LED that, in the Purchaser’s view, the Goods are not in accordance with this Agreement, PRIME LED is not liable for any claim in relation to the Goods.
- Goods ordered in error or in excess cannot be returned for credit or exchange except by special arrangement agreed to in writing by PRIME LED. Where PRIME LED agrees in writing to issue a credit note, this will involve a handling fee of 10% of the agreed price. In these circumstances, the Goods will only be accepted for return if returned in their original packaging, by PRIME LED’s nominated carrier in saleable condition, and received at PRIME LED’s warehouse within 12 days from the date of delivery, quoting invoice number and date of receipt. Authorised returns must be freight prepaid by the Purchaser.
- For the avoidance of doubt, in no circumstances will PRIME LED issue a credit note or exchange Goods which are ordered in error or in excess if those Goods were especially procured for the Purchaser, custom ordered, imported, manufactured or made to order for PRIME LED at the Purchaser’s request or of a particular nature not normally stocked by PRIME LED.
- In the event of any over-delivery in quantity of Goods to the Purchaser, the Purchaser must accept the Goods ordered and may reject the rest.
Guarantees and Warranties
- The Goods supplied by PRIME LED carry a standard warranty period as specified on the product packaging or on the product specification sheet.
- The Goods supplied by PRIME LED come with guarantees that cannot be excluded under the Australian Consumer Law. The Purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Purchase is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
- The liability of PRIME LED for breach of any non-excludable guarantee, warranty or condition of the Agreement, to the extent permitted by law, will be limited, at the option of PRIME LED, to the replacement of the Goods, the supply of equivalent goods or the payment of the cost of those Goods.
- In no circumstances will PRIME LED’s liability extend to indirect or consequential loss or damage.
- The Purchaser acknowledges and agrees with PRIME LED that:
- the manner of use of the Goods supplied to the Purchaser is beyond the control of PRIME LED;
- any advice, recommendation, information or services provided by PRIME LED, its employees, contractors or agents regarding the Goods sold and their use will not be construed as contractual guarantees, conditions or warranties and is provided to the Purchaser at the Purchaser’s own risk; and
- PRIME LED will not be liable to the Purchaser for any loss or damage (including indirect or consequential loss or damage) sustained by the Purchaser as a consequence of any incorrect advice, recommendation, information or services provided by PRIME LED, its employees, contractors or agents regarding the Goods sold or the methods or conditions of applications and use of the Goods sold, whether such loss was caused by any act of negligence, act of recklessness or any breach of any duty of care which may be owed to the Purchaser by PRIME LED, its employees, contractors or agents.
- In the event of a “force majeure” event, PRIME LED will be entitled either to rescind this Agreement (without being liable for damages) or to extend delivery or time for performance by a reasonable period of not less than the duration of such event and PRIME LED will have no liability under any contract, including liability for damages whether specified of otherwise. “Force majeure” will include all happenings beyond PRIME LED’s control or in consequence of which PRIME LED is hindered in executing its obligations and will include all strikes, trade disputes, fire, accidents and supply, import or export delays.
- This Agreement will be governed by the laws in the State of Victoria and the Purchaser agrees to submit to the non-exclusive jurisdiction of the courts of that State.
- The Purchaser acknowledges and agrees that under no circumstances will it take any ownership interest or right as licensee in PRIME LED Intellectual Property, and PRIME LED reserves all of its rights in respect of PRIME LED Intellectual Property.
- If any provisions of this Agreement are for any reason declared or become unenforceable, invalid or illegal for any reason, the other terms and provisions of this Agreement will remain in full force and effect as if this Agreement never included the unenforceable, invalid or illegal terms.
- PRIME LED’s failure to exercise, or delay in exercising, any right, power or privilege will not operate as a waiver of any such right, power or privilege.
- Any leniency, indulgence or extension of time which may be granted by PRIME LED to the Purchaser will not prejudice any of PRIME LED’s rights in any way, nor will they constitute a waiver of any of PRIME LED’s rights.
- No variation of or addition to this Agreement will be binding unless the variation is in writing and is authorised by a representative of PRIME LED and the Purchaser.
- Any notice or other notification required to be given under this Agreement must be in writing and will be deemed duly served three days after it is mailed (either by prepaid post, registered mail or security post), or one day after transmission by facsimile or email by either party to the other party as its address shown herein or last known business address or relevant facsimile number or email address.
Privacy Act Authority
- PRIME LED may disclose any personal information in its possession relating to the Purchaser to any credit reporting agency or similar body, for the purpose of assessing the Purchaser’s creditworthiness. The Purchaser consents to such disclosure, and also consents to PRIME LED receiving information from credit reporting agencies or similar bodies regarding the Purchaser’s commercial activities or creditworthiness.
Personal Property Securities Act
- The Purchaser acknowledges and agrees that:
- this Agreement gives rise to a security interest and constitutes a security agreement for the purposes of the Personal Property Securities Act 2010; and
- the security interest is taken in all Goods previously supplied by PRIME LED to the Purchaser (if any) and all Goods that will be supplied in the future by PRIME LED to the Purchaser during the continuance of the parties’ relationship.
- The Purchaser undertakes to:
- sign any further documents and/or provide any further information, such information to be complete, accurate and up-to- date in all respects, which PRIME LED may reasonably require to register a financing statement on the Personal Properties Securities Register;
- reimburse PRIME LED for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register;
- give PRIME LED not less than 14 days’ prior written notice of any proposed change in the Purchaser’s name and/or any other change in the Purchaser’s details.
- The Purchaser waives any rights to receive notice of any verification statement issued under the Personal Property Securities Act.