1. The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) from the date of invoice. mySmart Pty Ltd ABN 85 097 753 458 and its related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
2. Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of:
(a)10 percent of the amount of the invoice payable; and
(b)a further 10 percent per annum payable per year, or part thereof, until payment by the Applicant.
3. The Applicant acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
4. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
5. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
Orders and Quotations
6. Subject to sufficient information (as determined by the Supplier in its absolute discretion) being provided by the Applicant to the Supplier, the Supplier will provide quotations to Applicants upon request.
7. Upon receipt of a quotation the Applicant must confirm with the Supplier in writing by way of an order that the content of the quotation is acceptable at which time it will be deemed that the Applicant has also accepted the content of these terms and conditions. For the avoidance of doubt, the Supplier is under no obligation to provide the goods and services until written confirmation of acceptability of the quotation is received from the Applicant.
8. Unless otherwise stated in the quotation, the provision of goods is on a supply and commission basis and does not include installation or the provision of any ancillary materials or products required for installation and running of the goods such as 240v or control cables, enclosures, mountings, connections, DALI addressing or fault finding.
9. In the event that the Applicant’s requirements in relation to the goods and services changes, including but not limited to any change in the design, the Applicant will be liable for any increased costs associated with accommodating for such change.
10. Unless otherwise stated in the quotation:
(a) provision of the goods and services is based on Clipsal Series 2000 or HPM Excel Switch Plates;
(b) CAD drawings are not included, however soft copies of product data sheets for “as built” manuals are provided.
11. Prices appearing in a quotation are based on present rates and costs of providing the goods and services including, labour, currency exchange rates, insurance, government tariffs, duties and taxes and shall be subject to increase in respect of any variation in such rates or costs or the method of assessment of the same occurring during the term of the contract and before provision of the goods and services. Otherwise prices quoted shall not be subject to change within 30 days from the date of quotation.
12. Prices are based on the Australian/US Currency Exchange rate as published by the RBA at the date of quotation. The Supplier reserves the right to update a quotation in the event of any change in such exchange rate.
13. No provision for retention or liquidated damages has been included in any quotation.
14. Unless stated otherwise, all prices contained in a quotation are exclusive of GST and the Applicant is required to pay any GST payable by the Supplier in respect to the supply of the goods and services at the same time that the price is required to be paid by the Applicant to the Supplier.
15. Commissioning must be booked with the Supplier’s customer service section at least ten (10) business days prior to the date that such commissioning is meant to commence. In order for commissioning to occur, the Applicant must ensure that the following is completed;
(a) all devices must be powered up;
(b) all controlled loads must be connected, tested and documented;
(c) the network cable must be connected, tested and documented; and
(d) all DALI devices must be addressed, tested and documented.
16. Unless stated otherwise in the quotation, only the following standard commissioning services are provided:
(a) identification of the physical circuits (for ballast DALI ID) from the contractors as installed drawings;
(b) labelling of the physical channels in the configuration software;
(c) logical area and channel assignment of the actual channels; and
(d) setting the levels of all selected preset scenes.
17. Unless otherwise agreed by the Supplier, work carried out in relation to commissioning will be done between the hours of 8.00am and 5.00pm on business days.
18. Unless stated otherwise in the quotation or provided pursuant to a maintenance agreement, additional repeat visits and testing or reporting to cater for the requirements of rating schemes such as Green Star, NABERS, GBCA Office Design V2 & V3, are not provided.
Warranty and Liability of the Supplier
19. The Supplier warrants that the goods will be free from defects in materials or workmanship for one (1) year from delivery of such goods to the Applicant (“Warranty”). Unless the product is a mySmart Sensor (by CP Electronics) which have a product only warranty of five (5) years.
20. At its discretion, the Supplier will repair or replace the goods (as required), if it does not comply with the Warranty. goods will not be replaced until they are returned to the Supplier’s store, accompanied by relevant purchase documentation (such as invoice or delivery documents), and adequately inspected.
21. The Warranty does not cover any damage caused to the Applicant’s property and/or to any third party and/or third party property, arising from a breach of the Warranty.
22. The Warranty will not apply if during the warranty period:
(a) a good is repaired or programming is altered other than by a representative of the Supplier;
(b) the Applicant uses a good contrary to any technical or operating environment guidelines as set out in the manufacturer’s specifications;
(c) a good malfunctions or failure results from:
(i) deliberate or accidental damage;
(ii) neglect or modification;
(iii) incorrect voltage or a power surge; or
(iv) the Applicant’s use of any non-genuine consumables, software, parts, accessories or interfacing.
23. Other than the warranty in clause 19, the Supplier makes no warranties with respect to the supply of the goods and services.
24. To the extent permitted by law, the Supplier expressly limits its liability for breach of any condition or warranty implied into any contract or engagement to supply the goods and services by virtue of any legislation to the supply of the goods and services again or cost of having the goods and services supplied again, whichever the Supplier may in its absolute discretion select.
25. Except as otherwise expressly stated in these terms and conditions, the Applicant shall assume all risk and liability resulting from the use of the goods and services.
26. Except as otherwise expressly stated in these terms and conditions, the Supplier is not liable to the Applicant for:
(a) any loss, damage or expense sustained by the Applicant or any third party arising out of the supply of the goods and services, any breach by the Supplier of any contract incorporating these terms and conditions; or the negligence of the Supplier; or
(b) any indirect or consequential losses, loss of profits or use, any rectification costs or third party claims in connection with supply of goods and services.
27. The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
28. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
29. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
30. Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
31. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract
32. Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant’s offer will complete a contract.
33. Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions.
Retention of title
34. Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
35. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods will not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
36. Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods.
37. The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
38. The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause 37 hereof unless and until the funds held on trust are remitted to the Supplier.
39. The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue.
40. The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 39. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
41. The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
42. For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.
Cancellation of terms of credit
43. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
44. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
45. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
46. The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.
47. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
48. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
49. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
(a) the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the Applicant has the right to be indemnified out of trust assets;
(c) the Applicant has the power under the trust deed to sign this agreement; and
(d) the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
50. The Applicant must give the Supplier a copy of the trust deed upon request.
51. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
52. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
53. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
54. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant’s authorised officer in writing.
55. Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under the PPSA:
(a) under section 95 to receive notice of intention to remove an accession;
(b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
(c) under section 121(4) to receive a notice of enforcement action against liquid assets;
(d) under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;
(e) under section 130 to receive a notice to dispose of goods;
(f) under section 132(2) to receive a statement of account following disposal of goods;
(g) under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;
(h) under section 135 to receive notice of any proposal of the Supplier to retain goods;
(i) under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods;
(j) under section 142 to redeem the goods;
(k) under section 143 to reinstate the security agreement; and
(l) under section 157(1) and 157(3) to receive a notice of any verification statement.
56. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
57. The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
58. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 39 and 57.
(b) Secondly, in payment of any interest incurred in accordance with clause 64.
(c) Thirdly, in payment of the outstanding invoice(s).
59. In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
60. To the extent that payments have been allocated to invoices by the Supplier in it’s business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent with clause 59 herein.
61. Payments allocated (and/or reallocated) under clause 59 and/or 60 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
Taxes and duty
62. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
63. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
64. The interest rate on any outstanding debts is a fixed rate of 15 percent per annum.
65.All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
66.Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
67. The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier’s control.
68. In relation to the supply of goods, the Supplier’s liability is limited to:
(a) replacing the goods or supplying similar goods;
(b) repairing the goods;
(c) providing the cost for replacing the goods or for acquiring equivalent goods; and
(d) providing the cost for having the goods repaired.
69. In relation to the supply of services, the Supplier’s liability is limited to:
(a) supplying the service again; or
(b) providing for the cost of having the services supplied again.
70. The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
71. The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
72. The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
73. The Applicant further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
74.The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, without notice, and without being in any way liable to the Applicant or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
75. Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
76.All notices to be served upon the Applicant shall be deemed to be duly served if left at or sent by ordinary prepaid post to the last known address of the Applicant. The Applicant shall be deemed to have received any notice two (2) days after posting.
77. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
78. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
79. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
80. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
81. Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.
Consent to register
82. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
83. The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
84. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
85. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
86. The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document.