1.1 “FOL” refers to Lim Pham Pty Ltd ATF Lim Pham Unit Trust T/A Flick On Lighting Solutions, it successors and assigns or any person acting on behalf of and with the authority of Lim Pham Pty Ltd ATF Lim Pham Unit Trust T/A Flick On Lighting Solutions.
1.2 “You”, “Your”, Client” refers to you, visitor, website user or person using FOL’s website, the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client, this is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by FOL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between FOL and the Client in accordance with clause Error! Reference source not found. and Error! Reference source not found. below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
3. AMENDMENT OF TERMS
3.1 These terms and conditions may only be amended with FOL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and FOL.
3.2 The Client shall give FOL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by FOL as a result of the Client’s failure to comply with this clause.
4. COMPETITION AND CONSUMER ACT
4.1 For the purposes of Schedule 2 of the Australian Consumer Law, in particular Sections 51 to 53, 64 and 64A of Part 3-2, Division 1, Subdivision A of the Competition and Consumer Act 2010 (Cth), FOL’s liability for any breach of a term of this agreement is limited to: the supplying of the Goods to you again; the replacement of the Goods; or the payment of the cost of having the Goods supplied to you again.
5.1 At FOL’s sole discretion the Price shall be either:
(a) as indicated on any order/invoice provided by FOL to you; or
(b) the Price as at the date of delivery of the Goods according to FOL’s current price list; or
(c) FOL’s quoted price (subject to clause (c)) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 FOL reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied is requested; or
(b) In the event of increases in the cost of labour and materials beyond FOL’s control and where Client has not confirmed order and payment for order has not been made.
5.3 At FOL’s sole discretion a non-refundable deposit of thirty percent (30%) may be required (including but not limited to, non-standard, customised, non- regular, seasonal or ordered products) prior to ordering. Fulfilment of any such order will only commence upon receipt of cleared deposited funds.
5.4 Unless otherwise stated the prices shown are excluding GST. Customer will not be liable for any other duties in taxes payable on any sale of Goods unless otherwise stated
6.1 FOL uses Paypal to manage its Shopping Cart and process payments for orders placed over the Internet. Time of payment will be when the Client performs a check out on Goods using Paypal’s website.
6.2 Orders placed over the phone or in-store may be made by cash, cheque, electronic/on-line banking. Ezi debit, credit card (plus a surcharge of up to two percent (2%) or in the case of AMEX then up to three percent (3%) of the Price), or by any other method as agreed to between the Client and FOL.
6.3 Time is of the essence for payment for the Goods. The Price is due and payable on the date/s determined and advised in advance to the Client by FOL, which may be:
(a) prior to the delivery of the Goods for internet orders;
(b) on delivery of goods; or
(c) by way of instalments or payment terms as specified by FOL for approved Clients (“Approved Credit Terms”).
7. DELIVERY OF PHYSICAL GOODS
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at FOL’s address; or
(b) FOL (or FOL’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Client is unable to take delivery of the Goods as arranged then FOL shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.3 FOL may be required to deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Deliveries are processed promptly upon receipt of full payment or for orders placed for Clients with Approved Credit Terms. Delivery may take between 1 and 14 days from the dispatch day, depending on the customer location. Deliveries placed before 3:00pm will be dispatched the following business day. Below provides a guide for delivery timeframes:
Table 1: Guide to Delivery Timeframes
*For regional areas add 1-3 business days from your nearest city
7.5 Any time or date given by FOL to the Client is an estimate only. There will be circumstances where the delay in Delivery is due to circumstances beyond FOL’s control. In the event of a substantial delay in any delivery, FOL will notify the Client as soon as reasonably possible to arrange a new Delivery time and date unless the Delivery has been made a material term of any Delivery or contract, the Client agrees to accept such delayed delivery. In any event, FOL will not be liable for any loss or damage incurred by the Client as a result of any delayed Delivery..
7.6 If there is a delay in dispatch of Goods due to unavailability of Goods, FOL will notify the Client of the new expected timeframe for the Delivery or may offer an alternative product. In the event the Client does not want to proceed with either of these options, FOL shall repay to the Client in full any money paid by the Client for the Goods.
7.7 FOL is not responsible for Goods that are either damaged in transit or not received. Damaged or lost orders should be resolved with Australia Post or the relevant courier company directly. Replacement of damaged or lost items is made at the discretion of FOL
7.8 The cost of delivery is excluded in the Price, unless otherwise specified.
8.1 FOL may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving notice to the Client. On giving such notice FOL shall repay to the Client any money paid by the Client for the Goods. FOL shall not be liable for any loss or damage whatsoever arising from such cancellation.
8.2 The Client may cancel delivery of Goods prior the Goods being dispatched. Client must notify FOL as soon as reasonably possible. If the Client has requested a refund then FOL will refund any money paid for the Goods using the same method by which payment was made by the Client. If the Goods have already been dispatched then the returns process must be followed as per section section Error! Reference source not found..
8.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by FOL as a direct result of the cancellation (including, but not limited to, any loss of profits).
8.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced.
9. DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
9.1 The Client must notify FOL within thirty (30) days of delivery if the Client is required to return Goods due to issues other than warranty or wrong delivery. This is not applicable for Goods made to Clients specifications, Goods purchased in store and non-stocklist items.
9.2 The Client must inspect the Goods on Delivery and must notify FOL within seven (7) days of Delivery of defects, damage, shortage in quantity, or failure to comply with the description of order. The Client must notify FOL of any alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. The Goods must be return to FOL with a completed Warranty Claim Form (available on FOL’s website) to provide FOL with an opportunity to inspect the Goods. For more information on warranty claims terms and process please refer to the Warranty Against Defects Policy available on our website.
9.3 The Client acknowledges that for the purposes of any possible warranty claim, an invoice showing the date of purchase and installation by a qualified electrician (where applicable) must be provided at the time of claim. Warranties are given to the original purchaser and ownership may not be assigned or transferred to any other party. All such documentation is the responsibility of the Client. For more information on our warranty claims terms and process please refer to Warranty Against Defects Policy available on our website.
9.4 Subject to this clause 9, returns will only be accepted provided that:
(a) the Client has complied with the provisions of either clauses 9.1, 9.2 or 9.3.
(b) the Goods are returned within seven (7) days from notification of intent to return;
(c) the Goods are returned in the same or similar condition to that in which they were delivered
(d) the packaging boxes for individual products must not be marked, ripped or taped, and must be in its original condition as when it was delivered
9.5 Provided that FOL have accepted the returned Goods in accordance with clause 9.4,FOL will repair, provide replace or offer an alternative product. If FOL is unable to provide a replacement of the Goods or Client does not accept an alternative product offered, FOL will either refund any money paid for the Goods using the same method by which payment was made or provide a FOL store credit to the value of the purchased Goods at the option of the Client. Refunds and store credits will normally be processed within 30 days of FOL receiving the returned Goods.
9.6 If the Client is not a consumer within the meaning of the CCA, FOL’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by FOL at FOL’s sole discretion;
(b) limited to any warranty to which FOL is entitled by the manufacturer if FOL did not manufacture the Goods; or
(c) is otherwise negated absolutely.
9.7 Notwithstanding anything contained in this clause if FOL is required by a law to accept a return then FOL will only accept a return on the conditions imposed by that law.
9.8 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
9.9 FOL acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
9.10 Except as expressly set out in these terms and conditions, on our website or in respect of the Non-Excluded Guarantees, FOL makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. FOL’s liability in respect of these warranties is limited to the fullest extent permitted by law.
9.11 If the Client is a consumer within the meaning of the CCA, FOL’s liability is limited to the extent permitted by section 64A of Schedule 2.
9.12 Notwithstanding clauses 9.1 to 9.11 but subject to the CCA, FOL shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by FOL; and
(e) fair wear and tear, any accident, or act of God.
9.13 FOL may in its absolute discretion accept non-defective Goods for return in which case FOL may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs. FOL is not required to accept the return of Goods where the Goods have been specifically ordered or manufactured for the Client.
10.1 Risk of damage to or loss of the Goods passes to the Client upon Delivery.
10.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, FOL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by FOL is sufficient evidence of FOL’s rights to receive the insurance proceeds without the need for any person dealing with FOL to make further enquiries.
10.3 If the Client requests FOL to leave Goods outside FOL’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
10.4 The Client acknowledges that the warranty on Goods will not apply where such Goods have become defective as a result of power spikes or surges, fire, misuse, neglect, accident, abuse, improper installation/operation, modifications or unsuitable environmental conditions.
10.5 Unless the Client obtains a written arrangement from FOL at the time of purchase, the warranty on such Goods will become void where LED (should be defined) drivers or lights purchased from FOL are subsequently used alongside other manufacturers’ LED products.
10.6 FOL recommends that where applicable, Goods are installed by a suitably qualified electrician.
11.1 FOL and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid FOL all amounts owing to FOL; and
(b) the Client has met all of its other obligations to FOL.
11.2 Receipt by FOL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to FOL on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for FOL and must pay to FOL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for FOL and must pay or deliver the proceeds to FOL on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of FOL and must sell, dispose of or return the resulting product to FOL as it so directs.
(e) the Client irrevocably authorises FOL to enter any premises where FOL believes the Goods are kept and recover possession of the Goods.
(f) FOL may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of FOL.
(h) FOL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
12. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by FOL to the Client.
12.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which FOL may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.2(a)(i) or 12.2(a)(ii);
(b) indemnify, and upon demand reimburse, FOL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of FOL;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of FOL;
(e) immediately advise FOL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.4 FOL and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by FOL, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Client must unconditionally ratify any actions taken by FOL under clauses 12.2 to 12.4.
12.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. SECURITY AND CHARGE
13.1 In consideration of FOL agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Client indemnifies FOL from and against all FOL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising FOL’s rights under this clause.
13.3 The Client irrevocably appoints FOL and each director of FOL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause Error! Reference source not found. including, but not limited to, signing any document on the Client’s behalf.
14. INTELLECTUAL PROPERTY
14.1 Where FOL has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of FOL.
14.2 The Client agrees that FOL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which FOL has created for the Client.
15. DEFAULT AND CONSEQUENCES OF DEFAULT
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at FOL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes FOL any money the Client shall indemnify FOL from and against all costs and disbursements incurred by FOL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, FOL’s contract default fees, and bank dishonour fees).
15.3 Without prejudice to any other remedies FOL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions FOL may suspend or terminate the supply of Goods to the Client. FOL will not be liable to the Client for any loss or damage the Client suffers because FOL has exercised its rights under this clause.
15.4 Without prejudice to FOL’s other remedies at law FOL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to FOL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to FOL becomes overdue, or in FOL’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENTS ACT 2009
16.1 At FOL’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of South Australia, except to the extent permitted by the Act where applicable.
17.2 You may change your details at any time by advising FOL in writing via email. All information FOL receive from FOL’s customers, is protected by FOL’s secure servers. FOL’s secure server software encrypts all customer information before it is sent to FOL. Furthermore, all of the customer data FOL collects is secured against unauthorized use or access. Credit card information is not stored by FOL on FOL’s servers.
18. THIRD PARTIES
18.1 FOL does not and will not sell or deal in personal or customer information. FOL may however use in a general sense without any reference to your name, your information to create marketing statistics, identify user demands and to assist it in meeting customer needs generally. In addition, FOL may use the information that you provide to improve its website and its services but not for any other use.
19. DISCLOSURE OF INFORMATION
19.1 FOL may be required, in certain circumstances, to disclose information in good faith and where FOL is required to do so in the following circumstances: by law or by any court; to enforce the terms of any of FOL’s customer agreements; or to protect the rights, property or safety of FOL, its customers or third parties.
20. PRIVACY ACT 1988
20.1 The Client agrees for FOL to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by FOL.
20.2 The Client agrees that FOL may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
20.3 The Client consents to FOL being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
20.4 The Client agrees that personal credit information provided may be used and retained by FOL for following purposes (and for other purposes as shall be agreed between the Client and FOL or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by FOL, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
20.5 FOL may give information about the Client to a credit reporting agency for following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
20.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that FOL is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of FOL, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by FOL has been paid or otherwise discharged.
21. EXCLUSION OF UNENFORCEABLE TERMS
21.1 Where any clause or term above would by any applicable statute be illegal, void, or unenforceable in any State or Territory then such a clause shall not apply in that State or Territory and shall be deemed never to have been included in these terms and conditions in that State or Territory. Such a clause if legal and enforceable in any other State or Territory shall continue to be fully enforceable and part of this agreement in those other States and Territories. The deemed exclusion of any term pursuant to this paragraph shall not affect or modify the full enforceability and construction of the other clauses of these terms and conditions.
22.1 The failure by FOL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect FOL’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which FOL has its principal place of business, and are subject to the jurisdiction of the courts in that state
22.3 Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by FOL nor to withhold payment of any invoice because part of that invoice is in dispute.
22.4 FOL may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.5 The Client agrees that FOL may amend these terms and conditions at any time. If FOL makes a change to these terms and conditions, then that change will take effect from the date on which FOL notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for FOL to provide Goods to the Client.
22.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.7 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Lim Pham Pty Ltd T/A Flick On Lighting Solutions – Terms & Conditions of Trade
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