Terms of trade

TERMS OF TRADE

GENERAL

1. These Terms of Trade form a contract which applies to every sale by Lightly Pty Ltd ABN 45 603 263 225 (Lightly) to you (Customer).

2. These Terms of Trade and the orders to which they apply constitute the entire agreement between the parties with respect to the subject matter of these Terms of Trade and the orders, and supersede all prior agreements, understandings and communications (whether oral or written) between the parties. Without limiting the foregoing, these Terms of Trade prevail over, and to the exclusion of, any terms and conditions put forward at anytime (and whether contained on or referred to in any purchase orders, requests for tender, collection manifests, statements, attachments to orders or schedules or otherwise) by the Customer or any of its customers or subcontractors even if a representative of Lightly has accepted or signed such documents. Additionally, these Terms of Trade will apply even if they are not expressly referred to in an order placed by the Customer or an acceptance, invoice, delivery note or similar document issued by Lightly.

QUOTES, ORDERS AND PRICING

3. All quotes are valid for 30 days from date of quote for trade and wholesale.

4. Orders over $2,000 (excluding GST) require a 50% deposit to proceed, with the balance paid prior to shipment.

5. Orders under $2,000 (excluding GST) must be paid in full prior to production.

6. All invoices are payable in full prior to shipment or collection.

7.  Unless prior agreement otherwise has been made with Lightly, payment is to be made strictly 30 days from the date of invoice. Payment must be made in full free and clear from any set-off, retention, deduction or withholding. If payment is made by way of credit card, Lightly reserves the right to impose a credit card handling fee or surcharge of Visa/MC [2]%, Amex [4]%. This rate may be varied by Lightly from time to time.

8.  If payment is not made in full by the due date then Lightly will be entitled to charge interest on money due but not paid, at the rate of [9.5]% per annum calculated and compounded on daily balances commencing from the date payment is due until the date payment is made in full.

9. Lightly is not obliged to deliver and/or process any order and/or deliver goods to the Customer whilst any payment due from the Customer to Lightly on any account is in arrears. The Customer will have no claim against Lightly for any delay or other consequences arising from the application of this provision. Lightly has an absolute discretion as to how any money received from the Customer is to be applied. This discretion applies despite any principle or presumption of the law to the contrary or any direction given by any person at the time of payment or receipt and without the need for Lightly to communicate its election to any person.

10. By accepting any of our quotes or otherwise ordering any goods from us, you are confirming your agreement to all of these Terms of Trade.

11. All prices are exclusive of goods and services and any other applicable taxes. An additional amount in respect of these taxes will be added to the quoted price.

12.  Any quote provided by Lightly to the Customer is an invitation to treat only and is subject to the Customer offering to purchase goods or services from Lightly. The parties agree that any purchase order from the Customer will be deemed to be subject to these Terms of Trade even if they are not expressly referred to in the purchase order or quote. Lightly reserves an absolute discretion to accept or reject any orders submitted by the Customer. A binding contract of sale for the particular goods or services arises once the relevant order is accepted by Lightly and Lightly has confirmed its acceptance to the Customer in writing, issues an invoice for the goods or services or otherwise provides the Customer with the relevant goods or services. It is the Customer’s responsibility to provide Lightly with its specific requirements in relation to the goods and services it requires.

13. Freight is additional and will be estimated at time of order, and is subject to change once packed and weighed.

14. If the freight company is unable to deliver, the Customer will be solely responsible for any re-delivery fees.

15. If Lightly specifies or accepts a delivery time for goods, then such time shall be non-binding and approximate only especially if the goods are not in stock or a manufacturing lead time applies. Time shall not be of the essence. Lightly shall not be liable for any loss or damage suffered by the Customer or any third party for the failure or delay to meet any estimated date. In any event, we cannot be responsible for third party delays in transit. If the Customer does not notify shortages, damages or other discrepancies within 48 hours of delivery or collection, the goods will be deemed to have been delivered in accordance with the order and these Terms of Trade.

16. Goods cannot be returned for ‘change of mind’ unless we agree (in our absolute discretion). If we agree to a return, we may insist upon payment of a restocking and handling fee.

17. Orders may only be cancelled with our written consent in our absolute discretion.

18. Goods made to special order, i.e indent or custom, cannot be returned or credited unless we are required by law to do so.

19. Due to the handcrafted nature of the process of our pieces, slight differences and imperfections may occur in the craft. You acknowledge that this does not constitute a defect. These goods are individually hand made and no two are the same. Samples provided are indicative only.

20. We produce small batches on design and production may vary from batch to batch at times as that is the nature of our hand made artisan craft. Please read a little more about our production here: http://www.lightly.com.au/news/post/lightly-story-relationships/

21. Logos, photos, brochures, posters, advertisements, samples, display boards and any other marketing collateral are resources supplied by Lightly to help assist the Customer in promoting the goods. They must be used solely in accordance with any advertising and promotional guidelines issued by Lightly from time to time. They are not to be used, applied, copied or duplicated for re-distribution without written notification and consent by Lightly. The Customer must immediately cease using and must, if requested, promptly return to Lightly, all logos, photos, brochures, posters, advertisements, display boards and any other marketing collateral upon termination of these Terms of Trade or if otherwise directed by Lightly to do so.

INTELLECTUAL PROPERTY

22. Lightly’s goods (including their associated manuals, guidelines, specifications and drawings) incorporate its copyright, patents, designs and trademark rights which remain Lightly’s absolute property. The Customer acknowledges that it has no proprietary right or interest in the intellectual property relating to any of the goods (including their associated manuals, guidelines, specifications and drawings).

23.  The Customer must not attempt to register or record any of the intellectual property in respect of the goods or any part thereof or any patents, inventions, trademarks or designs derived from or substantially similar to the intellectual property in respect of the goods or aid or abet anyone else in doing so. The Customer must not copy, create, sell, manufacture, reverse engineer, publish or process any goods using or taking advantage of the intellectual property in respect of the goods. Any intellectual property related documents provided to the Customer by Lightly must be returned to Lightly on demand and must not be copied or communicated to any third party without the express written consent of Lightly.

NO RELIANCE

24. The Customer acknowledges and agrees that it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance, provided by Lightly in relation to the goods or their use, installation or application.

25. The Customer has the sole responsibility of satisfying itself that the goods are suitable for the use of the Customer or any contemplated use by the Customer or its customers, whether or not such use is known by Lightly. If any comments are provided by Lightly in relation to use, purpose, installation or application, such comments are merely general in nature and must not be relied on. Lightly does not hold itself out as having any special skills, expertise, knowledge in relation to such matters. Instead, the Customer must form (and solely rely upon) its own views and obtain its own independent advice as needs.

26. Any description of the goods provided in a quote or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description or a warranty as to suitability or fitness for purpose.

LIMITATION OF LIABILITY

27.  To the maximum extent permitted by law, all terms, conditions, warranties, representations, guarantees, undertakings, duties (including negligence), promises and assurances in favour of the Customer (whether arising in tort, contract, equity or statute) whether in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, installation, manufacture, design or performance of any goods or in relation to any other matters, not expressly set out in these Terms of Trade are excluded. Without limiting any of the foregoing, the parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (as adopted at Vienna).

28.  To the extent that any terms, conditions, warranties, representations, guarantees, undertakings, duties, promises, indemnities or assurances in favour of the Customer are implied or otherwise apply by virtue of statute and cannot be excluded, restricted or modified, then to the maximum extent permitted by law, Lightly’s liability for failure to comply with any of those terms, conditions, warranties, representations, guarantees, undertakings, duties, promises or assurances or Lightly’s liability under any such indemnities is limited (at the election of Lightly) to one or more of the following in relation to goods:

(a)           the replacement of the goods or the supply of equivalent goods;

(b)          the repair of the goods;

(c)           the payment of the cost of replacing the goods or of acquiring equivalent goods; and

(d)          the payment of the cost of having the goods repaired,

29.  To the maximum extent permitted by law, Lightly is not liable for any indirect or consequential losses, damages or expenses, loss of perishables, downtime, increased running costs, wasted resources, replacement equipment or hiring fees, removal and reinstallation costs, death or personal injury, damage to property, loss of turnover, loss of profits, business interruption costs, loss of opportunity, loss of business or goodwill or any liability to or claims by any other person. Except to the extent of Lightly’s liability under these Terms of Trade, the Customer indemnifies Lightly against any and all loss, damage, costs, expenses, demands, liabilities and claims arising from or in connection with the goods.

RISK

30.  All risk in goods purchased by the Customer passes to the Customer upon collection of the goods by or on behalf of the Customer from Lightly’ premises or upon despatch of the goods from Lightly’ premises to the Customer’s nominated delivery address (whichever occurs first).

31. The Customer is solely responsible for all freight, delivery and transport charges and all associated tolls, taxes, duties, excises, customs fees, import / export fees and compliance, clearances, warehousing, levies and insurances, and all quarantine matters. Lightly makes no representation in relation to any of these matters.

RETENTION OF TITLE

32. Until full payment in cleared funds is received by Lightly for all goods supplied by it to the Customer, as well as all other amounts owing to Lightly by the Customer, the following clauses will apply.

33.  All title and property in all goods supplied remains vested in Lightly and does not pass to the Customer.

34. The Customer must hold the goods as bailee and fiduciary for Lightly.

35.  The Customer must keep the goods separate from all other goods in a manner enabling them to be identified as goods supplied by Lightly and cross-referenced to particular invoices from Lightly and, without limiting the generality of the foregoing, must also maintain the identification details, serial numbers (if any) and marks as well as all packaging and labelling (including bar codes and other markings, if any) applied to the goods by Lightly.

36. The Customer must allow Lightly and its representatives to inspect the goods during normal business hours on not less than 24 hours notice and, if any payment owing the Customer to Lightly is overdue, the Customer must, if demanded by Lightly, immediately return the goods to Lightly.

37. The Customer must not sell, lease, dispose of, part with possession of, transfer or otherwise deal with the goods without the express prior written consent from Lightly until Lightly has been paid in full for those goods. For the avoidance of doubt, and notwithstanding anything to the contrary in these Terms of Trade, nothing in these Terms of Trade expressly or impliedly authorises the Customer to dispose of any goods in any manner until Lightly has been paid in full for those goods.

38.  If the Customer breaches any of the restrictions in the preceding paragraph, then without limiting or derogating from any of Lightly’ other rights, powers or remedies, the Customer must hold the proceeds arising or deriving (directly or indirectly) from any sale, lease, disposal, transfer of or other dealing with the goods on trust for Lightly and (before any of those proceeds are paid to any other creditors of the Customer or otherwise paid or applied by the Customer) the Customer must promptly account to Lightly out of those proceeds for any payments owing to Lightly. However, to the maximum extent possible, any breach by the Customer of the foregoing will not affect any of Lightly’s other rights, interests, powers or remedies with respect to those proceeds (including any rights or security interests arising under the PPSA). For the avoidance of doubt, Lightly’ security interests in the goods attach to their proceeds.

39. Additionally, if contrary to these Terms of Trade, the Customer sells, leases or otherwise deals with any goods before Lightly has been paid in full for those goods and an account (as defined in the PPSA) arises or is derived as proceeds of those goods, the Customer must not transfer (whether by assignment (legal or equitable), factoring, receivables financing or otherwise) any of those accounts (or any interest therein) without the express prior written consent of Lightly until Lightly has been paid in full for the relevant goods. Failure to comply with the foregoing restrictions constitutes a breach of these Terms of Trade.

40. To the maximum extent permitted by law, Lightly and its representatives may, without notice, enter any premises where it suspects the goods may be located and repossess and remove them, notwithstanding that they may have been attached to (or form an accession to) other goods not the property of Lightly, and for this purpose the Customer irrevocably authorises Lightly and its representatives to enter such premises (and to the extent that the premises are third party premises, the Customer must procure access for Lightly and its representatives) and also indemnifies Lightly and its representatives from and against all costs, claims, demands, liabilities and any actions by any person arising from such action.

PPSA

41. These Terms of Trade apply to every purchase of goods and services by or to the Customer from Lightly. By virtue of these Terms of Trade, security interests are created, arise or are provided for. The security interests are interests in the goods supplied by Lightly to the Customer at anytime (including in the future) as well as security interests in their proceeds.

42. The security interests in goods supplied secure payment of the purchase price for the goods as well as all other monies owing by the Customer to Lightly now and in the future.

43. The Customer acknowledges and agrees that these Terms of Trade constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). Additionally, for the purposes of the PPSA, the collateral is described as being all goods supplied by Lightly at anytime (including in the future) to the Customer as well as all proceeds from such goods.

44. The Customer must do all things necessary and execute all documents reasonably required to register the security interests and to ensure that Lightly has perfected security interests in the Products and their proceeds for the purposes of the PPSA.

45. Pursuant to section 115 of the PPSA, the parties hereby contract out of the following provisions of the PPSA to the extent (if any) mentioned in section 115 of the PPSA: 95, 118, 120, 121(4), 125, 129, 130, 132(3)(d), 132(4), 135, 142 and 143. The Customer also hereby irrevocably waives its rights to receive notices under section 157 of the PPSA. Lightly and the Customer also agree for the purposes of section 275(6)(a) of the PPSA that neither of them will disclose information of the kind mentioned in section 275(1) of the PPSA. Nor will the Customer authorise the disclosure of any information of the kind mentioned in section 275(1) of the PPSA without prior written consent from Lightly.

46. The rights, powers and remedies of Lightly under these Terms of Trade are in addition to any of its other rights, powers and remedies, including its right to seize collateral in accordance with section 123 of the PPSA. The Customer must not at anytime assert any right or interest in the goods supplied (or any of their proceeds) in priority to any security interest held by Lightly in the goods supplied (or their proceeds).

Customer Default

47.  If the Customer beaches any of these Terms of Trade or has any execution levied against it or becomes bankrupt or insolvent or intends to enter into any composition or arrangement with its creditors or does any acts which would render it liable to be wound up or it has a winding up order made against it or it passes or attempts to pass a resolution for winding up or an administrator, liquidator or controller (as defined in the Corporations Act 2001 (Cth)) is appointed to it or in respect of the whole or any part of its property or undertaking, then, without prejudice to any other or remedy available to Lightly (whether under these Terms of Trade or otherwise):

(a)  Lightly may by written notice to the Customer immediately suspend or terminate (in whole or in part) these Terms of Trade and any order accepted but not yet fully performed;

(b)  whether or not such notice is given, payment for all goods supplied by Lightly and any other monies payable by the Customer shall immediately become due. If Lightly does not (at least initially) elect to terminate an order which has been accepted but not yet fully performed, all remaining payments in respect of that order will become immediately due and payable; and

(c) Lightly may enter upon the premises where any delivered goods are situated and take possession of and remove the same without being responsible for any damage thereby caused and may, if the goods have been purchased by the Customer, resell the same and apply the proceeds in or towards payment of any monies owing by the Customer to Lightly.

48.  All costs and expenses (including legal costs on a full indemnity basis) of or incurred by Lightly in connection with any enforcement action shall be payable by the Customer on demand.

MISCELLANEOUS

49. Lightly reserves the right to vary these Terms of Trade from time to time. Lightly must give the Customer notice of any variation pursuant to this paragraph or must otherwise make the revised Terms of Trade publicly available on its website (with or without specifically notifying the Customer). Variations will take effect from the date so notified or published on Lightly’ website.

50.  No rule of construction applies to the disadvantage of Lightly just because it or its advisors drafted or put forward these Terms of Trade.

51. Each party enters into these Terms of Trade and each order as independent contractors. The Customer is not an employee, agent, partner or joint venturer of Lightly and the Customer has no right or authority to act, make representations or incur any obligations on behalf of Lightly.

52. No failure or omission by Lightly to carry out or observe any of these Terms of Trade will, except as provided to the contrary in these Terms of Trade, give rise to a claim against Lightly or be deemed to be a breach of these Terms of Trade to the extent that and for so long as such failure or omission arises from any event reasonably beyond the control of Lightly and which occurs without the fault or negligence on behalf of Lightly (Force Majeure Event). Lightly must promptly notify the Customer of the occurrence of the Force Majeure event and take all reasonable steps to overcome or address the Force Majeure Event so as to resume normal performance of its obligations as soon as possible. If Lightly remains unable to properly perform its obligations under these Terms of Trade for a continuous period of more than 3 months, then either party may elect to terminate these Terms of Trade or cancel all or any outstanding purchase orders.

53. Any amounts owing by the Customer to Lightly may be set-off by Lightly against any amounts owing by Lightly to the Customer.

54. The Customer must not assign any of its rights under these Terms of Trade or any order without the prior written consent of Lightly. Lightly may assign or novate its rights and obligations under these Terms of Trade and any order to any of its related entities (as defined in the Corporations Act) or to a bona fide purchaser of the whole or a substantial part of its business. Lightly may also assign to any person any debts owing to it by the Customer. Lightly may do any of the foregoing things without the Customer’s consent.

55. The rights, powers and remedies of Lightly provided for by these Terms of Trade are in addition to and without prejudice to or derogation from any other rights, powers or remedies of Lightly whether under these Terms of Trade or otherwise.

56. These Terms of Trade and the orders to which they apply will be governed and construed in accordance with the laws of the State of Victoria, Australia. The parties irrevocably agree that the courts of Victoria, Australia shall have exclusive jurisdiction to hear and determine any disputes which may arise out of or in connection with these Terms of Trade and the orders to which they apply, including disputes about formation, validity, interpretation or termination and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Victoria, Australia to determine any such disputes according to Victorian law.

 

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