Unless otherwise agreed to in writing, all Goods sold or offered for sale by Ferguson Lighting Pty. Limited are done so subject to the following “Terms and conditions of Sale”:
1. In these Terms and Conditions
(a) “Buyer” means the person or entity acquiring or offering to acquire the Goods from the Company and where there is more than one Buyer, the Buyer’s covenants and obligations are joint and several and the Buyer includes any lawful assigns, related body corporations, related businesses, executors, trustees administrators and liquidators (as the case may be).
(b) “Goods” means any item of any nature or composition sold by the Company at any time and unless the context otherwise requires, includes any services of whatsoever nature which are provided by the Company at any time.
(c) “Company” means Ferguson Lighting Pty. Limited. (ABN 79 093 227 939) or any other registered business names of the Company, related body corporate, and assigns.
(d) “Terms and Conditions” means these terms and conditions of sale.
(e) “Applications of Conditions”. Unless otherwise agreed in writing by the Company, these conditions will apply to all quotations, orders and offers in relation to the Goods and the sale, supply, service and replacement of all Goods and will take precedence over any inconsistent provisions in any Buyer order.
2. ALTERATIONS. No changes to these Terms and Conditions may be made without the written agreement of the Company.
3. QU0TATIONS. A quotation if given by the Company is not an offer to sell and estimates and quotations submitted by the Company are not binding. All quotations are subject to ruling Good and Services Tax (GST).
4. ORDERS AND CONTRACT. Each order by a potential buyer is subject to acceptance or rejection by the Company and is not binding on the Company prior to the Company’s acceptance of it. The Company’s written acceptance of an order, the order and the Terms and Conditions will constitute and entire agreement of the parties in relation to the subject matter of that order (the Contract) and may only be varied in writing, signed by the parties. These Terms and Conditions shall apply to all contracts and arrangements entered into between the Company and the Buyer at any time.
5. PRICES AND DESIGNS. The price quoted by Company to a Buyer is current for thirty days only and is then subject to change. Designs and specifications of Goods are subject to change without notice.
6. PAYMENT OF GOODS ON CREDIT ACCOUNT. If the Buyer does not pay cash or Cash On Delivery and has an approved credit account with the Company then the Buyer must pay to the Company any balance of purchase monies within twenty-eight days after delivery of the Goods except where otherwise agreed in writing. The Buyer must pay to the Company interest being the aggregate or three percent (5%) and the Corporate Overdraft Reference Rate of The Commonwealth Bank of Australia (certified by a Manager of that Bank) per annum on all overdue accounts calculated from the time such balance falls due to the date of payment.
7. CREDIT CARD PAYMENTS. If the Buyer elects to pay invoices or statements by using credit cards or any outstanding payments by credit cards then the Buyer agrees to pay the Company any mandatory additional credit card expenses due to that transaction.
8. TITLE OF GOODS “Insolvency Event” shall occur when:
(a) an application or order is made, a resolution is made or proposed or other steps are taken for a winding up, dissolution, provisional liquidation or voluntary administration of the Buyer (other than a voluntary liquidation for the purpose of amalgamation or reconstruction); or
(b) the Buyer enters into an arrangement, compromise or composition or assignment for the benefit of it’s creditors or any class of them;
(c) the Buyer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of business.
(d) The Buyer is deemed unable to pay its debts as and when they fall due, or stops or suspends the payment of its debts
(e) a Receiver & Manager, Administrator or other officer is appointed to the Buyer or any part of its property, or a third party attempts to levy execution against the Buyer’s property or the Goods or (in the case of the Buyer being a natural person) the Buyer commits an act of bankruptcy.
8.1 (a) The company and the Buyer agree that ownership of the Goods delivered by the Company to the Buyer will not pass to the Buyer until such time as the Goods and any of them whenever delivered, and all other monies owing to the Company on any account whatsoever have been paid for in full to the Company’s satisfaction.
(b) The Buyer acknowledges that the Goods may include items capable of being used in a manufacturing process or mixed with other goods. In any case, if the Goods are dealt with, used in any manufacturing process or otherwise have their character altered or allegedly altered, or mixed with or incorporated into any other goods whether goods of the Company or not, the Buyer agrees that the Company and its are authorised to enter into the Buyer’s premises and remove the Company’s Goods, whether attached to other goods or incorporated with other goods or not, in accordance with these terms and conditions. The Buyer acknowledges that the Buyer shall at all times deal with all Goods in accordance with these Terms and Conditions.
8.2 Until full payment has been made the Buyer holds the Goods as bailee for the Company and shall safely and securely stores the Goods separately from other goods on the premises of the Buyer in such a manner as to show clearly that the Goods are the Property of the Company. The Buyer shall not deal with the Goods inconsistently with these Terms and Conditions.
8.3 Where payment in respect of the Goods (or in respect of any particular delivery of the Goods, or otherwise is not made on or before the due date or if any insolvency event occurs, then,
(a) the Company may terminate any Contract relating to the Goods at any time and without prejudice to any other rights it may have against the Buyer, and
(b) the Buyer shall, should the Company so require deliver up the Goods to the Company failing which the Company is hereby irrevocably authorised to enter at any time by its servants or agents the place where the Goods are situated and to repossess the Goods and to remove the Goods from any vessel, vehicle, container, thing or place whether or not they have at any such time become incorporated or used in any vessel, vehicle, container or thing or place and for this purpose the Company is hereby appointed the Buyer’s agent.
The Buyer agrees to indemnify the Company and keep the Company indemnified against all costs (including full legal costs), incurred by the Company repossessing the Goods and against all claims against the Company arising from such removal.
8.4 If an insolvency event occurs and the Goods which have not been paid for in part or in full are mixed the Goods that have been paid for then the Buyer bears the onus of proving that the Company’s Goods in its possession (whether mixed with other Goods or not or used or altered) have been paid for in full buy the Buyer. If the Buyer is unable to prove to the satisfaction of the Company that the Goods identified by the Company as the Company’s Goods have been paid in full then those Goods shall be deemed to be the property of the Company. The Company shall be entitled to repossess those Goods without having to prove or demonstrate that the Goods relate to specific unpaid invoices outstanding at the time of repossession.
8.5 Notwithstanding the provisions of the preceding clauses the Buyer may sell the Goods to a third party on its own account (and not as agent for the Company) by the way of bona fide market sale for value and in the ordinary course of business and deliver them to that party provided however that if any insolvency event occurs and until the Goods have been paid for in full to the Company;
(a) where the buyer is paid by the third party then the Buyer holds the whole of the proceeds of the sale upon trust for the Company and shall not mingle any of the proceeds of the sale with the Buyer’s own monies or in any bank account with any other monies and shall ensure that all such receipts of sale are separately identifiable. Moreover, the Buyer shall on receipt of proceeds of sale remit to the Company all monies owing for the Goods (or any of them) in accordance with the Company’s terms of payment; and
(b) where the Buyer is not paid by that third party the Buyer agrees, at the option of the Company, to assign the Buyer’s rights against that third party to the Company upon the Company giving the Buyer notice in writing to that effect. For the purpose of giving effect to this sub-clause the Buyer irrevocably appoints the Company as its attorney.
8 .6 Where the Contract is for delivery of the Goods by instalments, the property in the Goods shall not pass to any person in respect of any of the Goods until payment has been paid to the Seller for the total price in respect of the goods.
9. RISK. The risk in the Goods passes to the Buyer when the Goods are appropriated by the Company in favour of the Buyer.
10. WARRANTIES
(a) Without limiting any statutorily implied warranty the Company warrants the Goods manufactured by Ferguson Lighting Pty Limited against defects due solely to faulty workmanship and materials for a period of twelve months from the date of supply by the Company, subject to condition in (b) and (c), to the extent that the replacement will be supplied free of charge for any Goods found by the Company to be so defective upon their return to the Company freight prepaid during the warranty period.
(b) Components from other manufactures or suppliers which are used in the Goods manufactured by Ferguson Lighting Pty Limited, and those components are proved to be defective, therefore the original manufacturer’s or supplier’s warranty/guarantee’s applies directly to the Buyer without involving Ferguson Lighting Pty Limited as a party in any liability or litigation whatsoever.
(c) Goods not manufactured by Ferguson Lighting Pty Limited and are purchased for the purpose to resell to the Buyer; therefore the original manufacturer’s or supplier’s warranty/guarantee’s applies directly to the Buyer without involving Ferguson Lighting Pty Limited as a party in any liability or litigation whatsoever.
(d) Subject to all conditions or warranties expressed or implied statutory or otherwise are hereby excluded. The Company is not liable for any injury, loss or damage sustained by the Buyer howsoever arising.
(e) Nothing in these Terms and Conditions affects the right of a Buyer who is a “consumer” within the meaning of the Trade Practices Act, the Fair Trading Act and the Sales of Goods Act or other legislation, and provided that where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption then the Company’s liability for breach of a condition or warranty implied by such legislation (other than Section 69 of the Trade Practices Act) and equivalent legislation is limited to the repair of the Goods, or at the Company’s option, the replacement of the Goods or the supply of equivalent goods.
11. DELIVERY. All delivery dates are approximate. The Company accepts no liability for the delay in delivery. Where a date is advised by the Company and there is a delay beyond that date no claim for damages arises. If delay occurs beyond the reasonable control of the Company, the Company may by notice in writing to the Buyer rescind the contract for the sale of the Goods at which time all obligations between the parties are at an end.
12. CANCELLATION If the Buyer cancels any order the Buyer must pay to the Company any amount being the Company’s reasonable administrative or other costs in executing the order together with compensation for any loss suffered as a consequence of the cancellation.
13. SAMPLES AND PROTOTYPES If required, the Company may provide samples or prototypes of Goods. If the Buyer does not proceed to purchase Goods based on such samples or prototypes then it must pay to the Company a sum equal to the development cost for each sample or prototype item provided. All prototypes, drawings, copyrights, intellectual properties, patents and samples remain the property of Ferguson Lighting Pty Limited unless otherwise agreed in writing between the parties.
14. DUTIES AND STATUTORY CHARGES The buyer must pay for all duties and statutory charges in respect to the sale or delivery of the Goods in addition to the purchase price quoted.
15. ADVICE AND SUITABILITY The Company is not liable to the Buyer for any advice, recommendation, information, assistance or services provided by it in relation to the Goods. The Company does not warrant that the Goods are suitable for a particular purpose. The Buyer accepts all risk and responsibility for use of the Goods and the Company is not liable for any consequential damage.
16. RETURN OF GOODS. Goods will not be accepted for return without prior written consent from Ferguson Lighting Pty. Limited. Goods manufactured to customer’s requirements and/or specification cannot be returned for credit.
17. GOVERNING LAW. The validity, performance and construction of these Terms and Conditions are governed by the laws of New South Wales and the Commonwealth of Australia.
18. MINIMUM ORDER. The minimum order value is $100 plus GST. A surcharge of $10.00 will apply to each invoice of less than $100 plus GST.
19. PATENTS etc. In all cases where the design is provided by the customer, Ferguson Lighting Pty. Limited accepts no responsibility for infringement of any patent, design, copyright, Electronic Layout right or any other intellectual property or any other right of any other party. Ferguson Lighting Pty Limited undertakes that no disclosure of the design will be knowingly made to any other party unless with the customer’s expressed or implied consent. The customer by acceptance of this “Terms and Conditions of Sale” or any quotation agrees to indemnify Ferguson Lighting Pty Limited absolutely in respect of the customer’s order.
20. INTELLECTUAL PROPERTY. The Buyer acknowledges and agrees that Ferguson Lighting Pty Limited are the lawfully owners of any Patents, Provisional Patents, copyrights, and intellectual property related and applicable to any Goods manufactured by the Company. The Buyer agrees not to copy and or manufacture any Goods designed and manufactured by the Company and also agrees not to source or procure any such Goods from a third party without the express written consent from the Company.
21. LOCATION OF CONTRACT (Legal Domicile). Any contract with Ferguson Lighting Pty Limited shall be deemed to have been executed and entered into the State of New South Wales and the same shall be construed enforce and performed in accordance with the laws thereof any proceedings shall be brought and heard in Sydney.
22. CONFLICT WITH BUYERS TERMS. If any purchase order or other trading terms of the Buyer conflict with or are inconsistent with any of Ferguson Lighting’s terms and conditions of sale, then Ferguson Lighting’s terms and conditions of sale prevail and will apply notwithstanding any conflicting or inconsistent terms of the Buyer. The Buyer acknowledges that the sale by Ferguson Lighting of any goods will not constitute acceptance of any conditions of purchase of the Buyer which conflict or are inconsistent with any of Ferguson Lighting’s terms and conditions of sale, even where Ferguson Lighting acknowledges the Buyer’s conditions prior to, upon or delivery of goods.