terms and conditions
The following Credit Terms, Supply Terms and Guarantee constitute the Supply Agreement between Atom Lighting Pty Ltd (ACN 604 737 386) (“Atom Lighting”) and the Customer (“the Agreement”) and all transactions between Atom Lighting and the Customer will be bound by and governed by this Agreement..
1. CREDIT APPROVAL
1.1. The Customer expressly authorises Atom Lighting to make any necessary enquiries in respect of the credit worthiness of the Customer including, without limit, contacting the Trade Referees.
1.2. If Atom Lighting approves the Customer’s Credit Account Application then the Customer is “credit approved” and Atom Lighting agrees to supply goods ordered by the Customer (“the Goods”) to the Customer subject to these Credit Terms in addition to the Supply Terms below.
1.3. Notwithstanding a Customer’s credit approval, Atom Lighting may at its absolute discretion set a credit limit for the Customer and so place a ceiling on the maximum level of indebtedness the Customer may incur to Atom Lighting at any given time (“the Credit Limit”). Atom Lighting may adjust a Customer’s Credit Limit at any time at their absolute discretion by written notice to the Customer.
1.4. Clauses 2, 3, 4, 5 and 6 of these Credit Terms apply to all Customers whether credit approved or not.
2.1. In consideration of Atom Lighting accepting and order from the Customer and as an essential condition of these Credit Terms, the Customer and each of the Guarantors (if any) named below charge all of their real property, whether owned now or in the future, with the amount of the Customer’s indebtedness to Atom Lighting from time to time including such indebtedness that has arisen prior to the date of this Agreement.
2.2. The Customer and the Guarantors must immediately upon demand by Atom Lighting sign all documents and do all such things as Atom Lighting reasonably requires to further secure to Atom Lighting the amount of indebtedness including, without limitation, a bill of mortgage over any real property (whether acquired before or after this Agreement).
3. POWER OF ATTORNEY
3.1. The Customer and the Guarantors each irrevocably appoint Atom Lighting or its directors, managers or credit managers severally to be the duly constituted attorney of each such person to execute any consents to caveats or bill of mortgage as Atom Lighting may wish to lodge against any dealings in any real property or to otherwise give effect to the charge granted in clause 2.
3.2. Such power of attorney is irrevocable and given as security and, without limitation, for the purposes of Section 10 of the Powers of Attorney Act 1998.
3.3. Any attorney so appointed may exercise their powers in any transaction notwithstanding that such exercise benefits Atom Lighting and does not benefit the Customer.
4.1. Defined terms in this clause 4 have the same meaning as given to them in the Personal Property Security Act 2009 (PPSA).
4.2. In consideration of Atom Lighting accepting a order from the Customer and as an essential condition of these Credit Terms, the Customer and each of the Guarantors charge all of their personal property, whether owned now or in the future, with the amount of the Customer’s indebtedness to Atom Lighting from time to time including such indebtedness that has arisen prior to the date of this Agreement.
4.3. Atom Lighting and the Customer and its Guarantors acknowledge that these Credit Terms constitute a Security Agreement and give rise to a Security Interest in favour of Atom Lighting over the personal property of the Customer and its Guarantors.
4.4. Atom Lighting and the Customer acknowledge that Atom Lighting, as Secured Party, is entitled to register its interest in the personal property of the Customer and Guarantors on the Personal Property Security Register (PPSR) as Collateral.
4.5. To the extent permissible at law, the Customer and its guarantors:
(a) waives its rights under s 157 of the PPSA to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Atom Lighting;
(b) agrees to indemnify Atom Lighting on demand for all costs and expenses, including: (i) legal costs and expenses on a solicitor/client basis associated with the registration or amendment or discharge of any Financing Statement registered by or on behalf of Atom Lighting and; (ii) enforcement or attempted enforcement of any Security Interest granted to Atom Lighting by the Customer;
(c) pursuant to s 115 of the PPSA agrees to waive their rights in ss 95, 123, 129(2), 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA.
5. RETENTION OF TITLE
5.1. Until all accounts owed by the Customer to Atom Lighting are fully paid:
(a) Atom Lighting will retain legal ownership of the Goods;
(b) Atom Lighting may, at its discretion, enter upon the Delivery Address (or other address where the Goods are reasonably believed to be stored) without liability for trespass or any resulting damage and retake possession of all or a portion of the Goods;
(c) the Customer grants Atom Lighting an irrevocable licence to enter the Delivery Address (or other address where the Goods are reasonably believed to be stored) for the purpose of (b) above.
(d) Atom Lighting may keep, change or resell all of a portion of the Goods repossessed pursuant to (b) above.
5.2. If the Goods or part of the Goods are resold by the Customer, whether in their original form or a modified form, the Customer shall, until the Goods have been paid for in full, hold such part of the proceeds of any such sale as represents the invoice price of the goods sold in a separate identifiable account as the beneficial property of Atom Lighting and will pay such amount to Atom Lighting upon request.
5.3. Notwithstanding the provisions above:
(a) Atom Lighting shall be entitled to maintain an action against the Customer for any unpaid portion of any purchase price for Goods sold to the Customer; and
(b) the risk in the Goods still passes to the Customer in accordance with clause 6 of the Supply Terms.
6.1. The Customer agrees to provide Atom Lighting with whatever personal information it requires to complete its obligations in this Agreement, including investigating the Customer’s credit worthiness
6.2. Atom Lighting may provide the Customer’s personal information to its employees and contractors only so far as is necessary for them to effectively perform their role.
6.3. Atom Lighting additionally reserves their right to relay personal information to their solicitors, debt collection agencies and such other bodies as are reasonably necessary to comply with or enforce the terms of this Agreement.
6.4. The Customer may, by written request, access or review any personal information collected or held by Atom Lighting.
6.5. Unless otherwise agreed with the Customer, Atom Lighting will not provide the Customer personal information to any third parties other than those mentioned above.
7. TERMINATION OF CREDIT APPROVAL
7.1. Atom Lighting may at any time and in its absolute discretion terminate any credit approval for the Customer or, without terminating this Agreement, refuse to supply any Goods which may be requested by the Customer on credit terms.
8.1. The general terms detailed in clause 10 of the Supply Terms are deemed to be repeated in these Credit Terms.
1. CUSTOMER IS A RETAILER OR WHOLESALER
1.1. It is an essential condition of this Agreement that the Customer is a retailer or wholesaler and:
(a) has a discernible and established retail or wholesale presence (for example, a show room);
(b) purchases Goods from Atom Lighting for the sole-purpose of re-supplying those Goods to other suppliers, electricians, builders, homeowners, business owners or other end consumers of that nature; and
(c) does not engage in electrical work or the installation of products similar to the Goods.
2.1. The Customer warrants that the person(s) noted on the Credit Account Application as “Authorised Persons” are persons who are authorised and empowered by the Customer to bind the Customer and to validly enter into agreements and act on behalf of the Customer.
2.2. The Customer acknowledges that Atom Lighting is entitled to assume that any other persons who hold themselves out as being an agent or duly authorised representative of the Customer are able to bind the Customer and validly enter into agreements and act on behalf of the Customer.
3.1. Atom Lighting may decline any order for Goods received from the Customer by written notice to the Customer and may withdraw or vary any quotation prior to acceptance of it by the Customer.
3.2. All prices stated in quotations are for immediate acceptance and are subject to amendment by Atom Lighting before or after acceptance by an amount equal to the rise in cost to Atom Lighting of any of the labour, goods or materials comprised in the quotation or order.
3.3. The Customer acknowledges upon acceptance of a quotation or the placing of an order that the Goods there particularised are those required by the Customer and agrees to pay for them upon delivery under this Agreement.
3.4. No order may be cancelled by the Customer except with consent in writing of Atom Lighting and on terms which will indemnify Atom Lighting against all losses.
3.5. Atom Lighting will not, unless expressly confirmed in writing by Atom Lighting at the time the order is accepted or this sale is made, agree to any retention clauses contained in the Customer’s order form.
3.6. Unless otherwise noted on the quotation or order, the Goods will be delivered to the Customer by or on behalf of Atom Lighting in accordance with clause 7.
4.1. The Customer must pay for the Goods:
(a) if the Customer is credit approved, within:
thirty (30) days;
sixty (60) days;
of the end of the month in which the order was placed with Atom Lighting;
(b) if the Customer is not credit approved, immediately upon or prior to delivery.
(“the Due Date”)
4.2. The Customer will not be entitled on any ground whatsoever either wholly or in part to withhold payment after the Due Date.
4.3. Unless otherwise stated, all prices expressed by Atom Lighting are deemed to be exclusive of GST. If any supply by Atom Lighting to the Customer is a taxable supply then the Customer must pay, in addition to the price quoted, any GST applicable to such supply. In those circumstances Atom Lighting must supply to the Customer a tax invoice.
4.4. Where the Customer comprises more than one individual or entity, each such individual or entity will be jointly and severally liable under this Agreement to Atom Lighting in respect of all monies payable pursuant to this Agreement by the Customer to Atom Lighting.
5. LATE PAYMENT
5.1. Atom Lighting may charge the Customer interest at the rate of 12% per annum on any amount outstanding after the Due Date. This right is in addition to any right to terminate this Agreement.
5.2. If Atom Lighting considers it necessary to instruct its solicitors or debt collectors to collect any overdue amount, all legal fees and other expenses incurred while pursuing the overdue amount (“Debt Recovery Expenses”) will be recoverable from the Customer on an indemnity basis.
5.3. Any payment received after the Due Date will be allocated firstly towards Debt Recovery Expenses, secondly toward payment of outstanding interest and finally to the repayment of the outstanding tax invoice.
5.4. Default in payment shall entitle Atom Lighting to suspend delivery of any undelivered portions of the Goods and to commence proceedings for the collection of outstanding amounts, without prejudice to any subsequent claim Atom Lighting may have for non-fulfilment of the Supply Terms.
6. RISK AND LIABILITY
6.1. Risk in each order shall pass to the Customer upon delivery of the Goods to the Customer in accordance with clause 7.
6.2. Atom Lighting is not liable for any default or failure in performance of its obligations pursuant to this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of Atom Lighting.
6.3. Under no circumstances will Atom Lighting be liable for any indirect, consequential, incidental, special or punitive damages (including without limitation damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising from any breach or failure by Atom Lighting of its obligations under this Agreement even if Atom Lighting has been notified of the possibility of such damage arising.
6.4. Subject to clause 8, Atom Lighting will not be liable for any loss or damage caused to the property or person of the Customer or any third party as a result of any defect in any product supplied as part of the Goods, whether patent or latent, and the Customer indemnifies Atom Lighting against any claims made against it by any third party arising out of any such defects.
7. DELIVERY AND RETURNS
7.1. Atom Lighting will deliver the Goods to the Delivery Address nominated by the Customer. If the Customer or its representative is not available to accept delivery of the Goods at the Delivery Address the Customer may nominate a place for Atom Lighting to leave the Goods (“Nominated Location”) in which case the Goods will be deemed to have been delivered once they are left at the Nominated Location. Under no circumstances will Atom Lighting be liable for any loss or damage to the goods as a result of the Goods being left at the Nominated Location. If the Customer is neither available to accept delivery of the Goods at the Delivery Address or does not provide details of a Nominated Location, Atom Lighting reserves the right to charge for storage of the Goods.
7.2. Any delivery times advised to the Customer are estimates only and Atom Lighting will not be liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Goods.
7.3. Any claim by the Customer of an error in the invoice or statement provided by Atom Lighting must be made to Atom Lighting within seven (7) days of receipt of such invoice or statement, failing which the Customer may not raise any objection in respect of any item on such invoice or statement.
7.4. Atom Lighting is not responsible for any loss or damage to the Goods in transit. Atom Lighting will render the Customer such assistance as may be necessary to press claims on carriers provided the Customer notifies Atom Lighting and the carriers in writing immediately upon receipt of the Goods and lodges a claim on the carrier within three (3) days of the date of receipt of the Goods.
7.5. Subject to clause 8, the Customer is not entitled to raise any objection to the quality of the Goods unless it does so within seven (7) days of delivery. If the Customer does not raise any objection to the quality of the Goods within that timeframe then Atom Lighting will forever be released from claims or demands of the Customer or all those claiming through or by the Customer.
7.6. Return of goods after seven (7) days will be at Atom Lighting’s absolute discretion and subject to a 20% restocking fee. Returned Goods will not be accepted by Atom Lighting unless they are current stock items and are returned in original packing, unsoiled, undamaged and otherwise in a saleable condition.
Atom products are distributed in Australia and New Zealand by Atom Pty Ltd (Atom).
The Australian Consumer Law as well as other Australian laws guarantee certain conditions, warranties and undertakings, and give you other legal rights, in relation to the quality and fitness for purpose of Atom products sold in Australia.
In Australia, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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. What constitutes a major failure is set out in the Australian Consumer Law.
Nothing in this Warranty purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Competition and Consumer Act and other Australian laws.
Atom products are warranted in Australia for a period specified on packaging from the date of delivery of the product, provided that the products are properly stored, installed, used and maintained in accordance with the instructions contained within their manual.
Products that have been altered in any way or used other than in accordance with their instructions are not covered by this Warranty.
This Warranty is not transferrable and is valid only in the hands of the purchaser of the product. The warranty does not cover Atom products other than those purchased from Atom. Proof of purchase must be provided to Atom with any warranty claim. Atom recommends that the purchaser attaches their proof of purchase to their product manual.
If you wish to claim under this Warranty, you must, at your own expense, return the product or that part of the product which you believe is defective, and proof of original purchase, your name, address and telephone number and a certificate of installation or other document required by the law for the installation of electrical products in the place in which the product was installed, to Atom at the address above within the warranty period from the date of purchase. Please note that the Warranty does not cover removal or reinstallation of the product or that part of the product which you believe is defective.
Atom’s total liability under this Warranty is limited to the cost of repair or replacement of the faulty product. Atom may satisfy its obligations under this Warranty in full by repair or replacement of a faulty product.
This Warranty does not apply to consumable items such as lamps or batteries or other items that can be classified as consumable.
For the avoidance of any doubt, any and all warranties or conditions which are not guaranteed under the Australian Competition and Consumer Act or the Australian Competition and Consumer Regulations 2010 and which are not expressly included in this Warranty as additional warranties or conditions are excluded.
This Warranty does not cover loss or damage caused by wear and tear, misuse, incorrect installation or operation, failure to clean and maintain, incorrect voltage or non-authorised electrical connections, adverse external conditions (such as power surges and dips, acts of God, exposure to heat, corrosion, insect or vermin infestation), use of non-authorised or defective parts or globes, or to items that have been repaired other than by Atom or a repairer approved by Atom.
9.1. In the interpretation of this Agreement, unless the context or subject matter otherwise require:
(a) singular includes plural and vice versa and any gender includes every gender;
(b) a reference to a person includes corporations, trusts, associations, partnerships, a government authority, and other legal entities, and where necessary, includes successor bodies;
(c) references to days mean calendar days;
(d) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders in council, rules, by laws and ordinances made under those statutes;
(e) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(f) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(g) each paragraph or sub paragraph in a list is to be read independently from the others in the list;
(h) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
(i) a reference to a party includes that party’s executors, administrators and successors.
10.1. Nothing contained in this Agreement will be construed as placing the parties in the relationship of partners or joint venturers or in any relationship other than that of contractors at arm’s length.
10.2. The failure by Atom Lighting to exercise any right or remedy arising under this Agreement or at law will not be deemed to be a waiver or abandonment of such right or remedy and the same will remain exercisable and actionable by Atom Lighting notwithstanding that all other matters have been completed. The wavier by Atom Lighting of any right or action on any particular occasion will not be taken as a waiver of the same right or action on any other occasion.
10.3. The Customer acknowledges that no representations have been made by any employee or agent of Atom Lighting to the Customer whatsoever. This Agreement supersedes all prior agreements, arrangements, warranties and undertakings between the parties whether express or implied and constitutes the entire agreement between the parties.
10.4. A notice, request, consent or other communication to be given by a party under this Agreement must be in writing addressed in accordance with the particulars for that party shown in the heading of this document or to another address for a party as may be notified in writing by that party.
10.5. Amendments to this Agreement may only be made by the parties in writing with the consent of both parties.
10.6. This Agreement is governed by the laws of the State of Queensland and the parties, by entering into this Agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that state.
10.7. Neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party without the prior written permission of the other.
10.8. If any provision of this Agreement is void, voidable, unenforceable, or illegal in its terms, but would not be void, voidable, unenforceable or illegal if it were read down and, it is capable of being read down, or severed then that provision will be read down or severed accordingly and the remainder of the terms will be of full force and effect.
10.9. None of the terms of this Agreement, or anything done under or by virtue of this Agreement or any other agreement, instrument or document, or judgment or order of any court of judicial proceeding, will operate as a merger of any of the rights and remedies of the parties under this Agreement, and those rights and remedies will at all times continue in force.
10.10. This Agreement will inure to the benefit of, and be binding upon, the parties, their respective executors, administrators, legal representatives, heir, successors and permitted assigns.
10.11. Unless otherwise expressly stated to the contrary, any time period specified in this Agreement will be of the essence.
10.12. Atom Lighting and the Customer must at all times maintain as strictly confidential any information designated as being confidential information or of such a nature as to ordinarily be confidential information that is disclosed or provided by one party to the other. In this clause, “confidential information” means information in any form but does not include information that is already in the public domain at the time that is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by Atom Lighting or the Customer.