Disclosure of Key Terms relating to the supply of goods or services to consumers

Section 47A Fair Trading Act 1987 (NSW) (“the Act”)

The following contains a summary of key terms in the attached Terms between Vision Lighting Supplies Pty Ltd ACN 156 146 833 (Us, We, Our) and the Customer (You), which You should be made aware of as they may be considered substantially prejudicial to your interests. Please consider these Terms carefully and seek independent legal advice if required.

Clause 11.7 – Exclusion of Warranties
Clause 6.2 – Limitation of Liability
Clause 12 and 17.10 – Indemnity
Clause 9 & 16– Guarantee and Charge
Clause 13 – Privacy

General Terms and Conditions of sale

Vision Lighting Supplies Pty Ltd ACN 156 146 833

These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by Vision to the Customer from time to time. Any supply of Goods by Vision to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Vision (“Agreement”) and any such supply does not give rise to a new or separate agreement.

Definitions and Interpretation

1.1 In this document:

Additional Charges includes but is not limited to any delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Price, payable by the Customer to Vision arising out of the sale of the Goods. Australian Consumer Law has the meaning given to it in the Competition and Consumer Act 2010 (Cth).

Customer means a person or entity who purchases Goods from Vision.

Delivery Time means the date and time that Goods are:

(a) delivered by Vision (or a contractor engaged by Vision) to the Site; or

(b) collected by the Customer (or a contractor engaged by the Customer) from Vision’s warehouse.

Goods mean any product, item, equipment or materials sold or to be sold by Vision to the Customer.

GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Guarantor means each director of a corporate Customer.

Intellectual Property Right means any patent, registered design, patent, trademark, copy-right, trade secret or any other proprietary right of a third party or parties, registered or unregistered, in any country.

Invoice means the written invoice issued by Vision to the Customer which separately itemises the Price for the Goods and delivery charges (if applicable).

Order means a written order to purchase Goods placed by the Customer with Vision.

PPSA means the Personal Property Securities Act 2009 (Cth).

Price means the price of Goods determined under clause 3.

Quotation means a written quotation issued by Vision for the sale of Goods (including any varied Quotation).

Site means the location (nominated by the Customer) where the Goods are to be delivered.

Specifications means any specifications for Goods provided to the Customer by Vision.

Vision means Vision Lighting Supplies Pty Ltd ACN 156 146 833 its successors and assigns or any person acting on or behalf of or with the authority of Vision Lighting Supplies Pty Ltd ACN 156 146 833.

1.2 In this document:

(a) any reference to a party includes its successors and permitted assigns;

(b) headings are for convenience only and have no legal effect;

(d) “including” and similar words do not imply any limitation;

(e) a reference to $ is to the Australian currency;

(f) a reference to legislation or a legislative provision includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them; and

(g) if the performance of an obligation under this document falls due on a weekend or public holiday day it must be performed on the next business day.

Quotations and Orders

2.1 Quotations are valid for a period of 30 days and may be amended or withdrawn at any time in writing by Vision before an Order is placed by the Customer.

2.2 An Order for Goods is not binding until it is accepted in writing by Vision. Upon acceptance a contract between Vision (as supplier) and the Customer (as purchaser) will be created on the Terms contained in this document and these Terms will override any terms contained in the Customer’s order or instructions.

2.3 An Order that has been accepted by Vision cannot be cancelled, delayed or varied, except with the prior written consent of Vision (which consent, if granted, will be given on the basis that the Customer must indemnify Vision for any costs, losses and expenses sustained or incurred by Vision as a result of the cancellation, delay or variation).

2.3 These terms will apply (without further notice) to all supplies of Goods by Vision to the Customer, whether or not it is delivered or executed in the course of the transaction.

2.4 In addition to any exclusions specified in Vision’s quotation to the Customer, the following is deemed to be a variation and Vision reserves the right to revise and amend the Price:

(a) Additional Goods required on finalisation or amendment of design;

(b) Additional freight cost due to special requests of Customer not contemplated in the Quotation (e.g. urgent production or delivery, split production or delivery);

Price

3.1 The Price for Goods will be the price set out in a Quotation. If there is an inconsistency between the Price in a Quotation and the price listed on a current product list or website, the price set out in the Quotation will prevail.

3.2 Prices do not include applicable taxes or statutory charges (such as GST) or delivery charges. Any delivery charges will be separately itemised in Quotations and/or Invoices.

3.3 Vision shall be entitled to pass on to the Customer any Additional Charges reasonably incurred not contemplated in the Quotation.

Payment

4.1 Vision may require payment of a deposit for Goods on placing an Order. Vision may also require that Goods be paid for in instalments.

4.2 For Customer who have an approved credit account with Vision, payment of any balance for Goods is due within 30 days after receipt of the Invoice for those Goods.

4.3 For Customers who do not have an approved credit account with Vision, payment for Goods is due on or before delivery or collection of the Goods or upon notification by Vision that the Goods are ready for dispatch or collection.

4.4 Payment must be made by cash, bank cheque, credit card (which may include provider surcharge) or direct deposit into Vision’ bank account.

4.5 Withholding of payment by a client of the Customer’s does not relieve the Customer of its obligation to pay Vision for the Goods in accordance with this document.

4.6 At the same time as the Customer is required to pay an Invoice it must also pay to Vision an additional amount equal to the GST payable on the taxable supply.

4.7 Subject to clause 6, payment will constitute acceptance of the Goods by the Customer.

4.8 All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.

4.9 All invoices for progress payments will be prepared to meet the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) and for any Goods and Services supplied outside of New South Wales, in accordance with the relevant Building and Construction Industry Payment Act of the State or Territory in which they were supplied. The Customer is hereby put on notice of the application and requirements of the security of payment legislation and the rights of Vision under such legislation. Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the security of payment legislation in the respective State and Territories in Australia.

Delivery

5.1 Vision may (unless otherwise agreed in writing with the Customer) engage a carrier to deliver the Goods to the Site.

5.2 Unless otherwise agreed in writing with Vision, all delivery charges are in addition to the Price for the Goods and will be separately itemised in any Quotation and Invoice. Any additional costs due to special requests or split deliveries will result in additional charges.

5.3 The times quoted for delivery are estimates only. Vision will use reasonable endeavours to meet the Customer’s desired delivery timeframe but accepts no responsibility for late delivery due to factors outside its reasonable control. Vision reserves the right to deliver the Goods in instalments. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.

5.4 The Customer acknowledges that Goods do not need to be signed for when delivered and may be unloaded and left on any part of the Site that Vision or its carrier considers reasonable in the circumstances.

5.5 The Customer acknowledges and agrees that Vision’s responsibility is limited solely to the supply and delivery of Goods as described in these Terms. Vision is not responsible for, and the Customer shall have no claim against Vision in respect of, any labour, installation, commissioning, removal, or related works performed by the Customer or any third party, whether arising from product requirements, installation, or any other cause.

5.6 Any costs, expenses, or damages incurred by the Customer in connection with the installation, removal, or adjustment of the Goods (including any labour or contractor charges) are entirely at the Customer’s expense and shall not be recoverable from Vision under any circumstances.

5.7 For the avoidance of doubt, Vision’s obligations do not extend to site labour, supervision, or compliance with on-site installation or construction requirements unless expressly agreed to in writing by Vision.

Defects and returns

6.1 The Customer must inspect the Goods as soon as possible on or after delivery and notify Vision in writing within 7 days of delivery of any alleged shortages, defects or damage, together with photographic or other evidence. If no such notice is received by Vision within 7 days of delivery the Customer is deemed to have accepted the Goods.

6.2 If Vision accepts any shortages, or that Goods are defective or damaged, Vision agrees to supply the short quantity of Goods or (at its discretion) replace the Goods, provide a refund for the Goods or repair the Goods, except in circumstances where the Goods have not been stored or used in a proper manner.

6.3 Goods which suffer damage after delivery to the Customer or as directed by the Customer will not be accepted for return.

6.4 Vision may, at its discretion, accept the return of non-defective Goods (within 30 days) for credit subject to a reasonable handling and restocking fee (as determined by Vision at the time). The Customer must pay the freight costs associated with the return of Goods under this clause. Custom-produced goods cannot be returned for credit unless defective.

6.5 Nothing in this clause 6 limits any rights or remedies the Customer may have under the Australian Consumer Law in circumstances where the Customer acquires the goods or services from Vision as a consumer.

Ownership and risk

7.1 Risk in the Goods passes to the Customer at the Delivery Time.

7.2 Ownership and title to the Goods does not pass to the Customer until the Customer has paid all amounts owing in respect of those Goods.

7.3 Between the Delivery Time and the time that title to the Goods passes to the Customer, the Customer must:

(a) insure the Goods for their full replacement value;

(b) not re-sell, use or otherwise appropriate the Goods; and

(c) store the Goods separately from any other goods it holds and in a way that enables the Goods to be clearly identifiable as the property of Vision.

Personal Property Securities Act 2009 (“PPSA”)

8.1 Capitalised terms used in this clause have the meanings given to them in the PPSA.

8.2 The Customer acknowledges and agrees that:

(a) this document constitutes a Security Agreement in respect of the Goods;

(b) the Goods are Collateral for the purposes of the PPSA and the Proceeds of the sale of the Collateral falls within the classification of “Account”;

(c) Vision holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by Vision to the Customer and any Proceeds of the sale of those Goods;

(d) that any purchase by the Customer on credit terms from Vision or retention of title under clause 7 will constitute a Purchase Money Security Interest;

(e) the Purchase Money Security Interest granted will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence pursuant to these Terms;

(f) Vision will continue to hold a Security Interest in the Goods in accordance with, and subject to, the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other goods;

(g) any Vision Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interests;

(h) until title in the Goods passes to the Customer, it will keep all goods supplied by Vision free of any charge, lien or Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of Vision under this document or the PPSA; and in addition to any other rights under this document or otherwise arising, Vision may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA, including entry into any building or premises owned, occupied or used by the Customer to search for and seize, dispose of or retain those Goods over which Vision holds a Security Interest.

8.3 To the extent permitted by law, the Customer undertakes to:

(a) sign any further documents and provide such information which Vision may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the Personal Property Securities Register;

(b) indemnify, and on demand reimburse, Vision for all costs and expenses including legal costs and expenses on a solicitor / client basis incurred in registering a Financing Statement or Financing Change Statement on the Personal Property Securities Register or releasing any Security Interests;

(c) not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Vision; and

(d) provide Vision not less than 7 days prior written notice of any proposed change in the Customer’s name, address, contact numbers, business practice or other change in the Customer’s details registered on the Personal Property Securities Register to enable Vision to register a Financing Change Statement if required.

8.4 Vision and the Customer agree that sections 96, 125, 130 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under this document.

8.5 The Customer waives its rights:

(a) to received notices under sections 95, 123, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA; and

(b) as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA; and

8.6 The Customer must unconditionally ratify any actions taken by Vision under this clause 8.

8.7 The Customer appoints and authorises Vision to be its attorney to sign in the Customer’s name on all documents which Vision reasonably considers necessary to protect, preserve and enforce its rights and powers under this document and the PPSA.

8.8 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.

Charge

9.1 The Customer charges in favour of Vision:

(a) any land that the Customer owns (or subsequently acquires) as security for any and all moneys owing to Vision and authorises Vision to register a caveat over the land if the Customer defaults in making payment of any amount due to Vision; and

(b) all the Customer’s personal property including, without limitation, all the stock, motor vehicles, plant and equipment and debtors that the Customer owns (or subsequently acquires) as security for any and all moneys owing to Vision and authorises Vision to register, with any competent authority, including the Personal Property Securities Register, the charge over the property if the Customer defaults in making payment of any amount due to Vision.

9.2 Nothing in this clause limits anything in clause 8.

Default and termination

10.1 In relation to any Invoice that has not been paid by the due date:

(a) default interest will accrue daily at the rate of 12% per annum; and

(b) the Customer agrees to indemnify Vision from and against all costs and disbursements incurred by Vision in pursuing the debt (including legal costs and collection agency costs).

10.2 The Customer will be liable for any dishonour fees incurred by Vision in connection with a payment by the Customer.

10.3 If the Customer:

(a) is in default of any payment obligation or if any cheque or bill of exchange drawn by the Customer payable to Vision is dishonoured;

(b) fails to remedy a breach of any non-payment related obligation within 14 days of having been given written notice to remedy the breach by Vision;

(d) commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up or ceases to carry on business, then Vision may, without prejudice to any other rights or remedies available to it under this document or otherwise, by notice in writing to the Customer:

(a) suspend further supply and require payment in advance for future supply;

(b) recover possession of and resell any Goods for which payment has not been made without notice to the Customer;

(d) claim immediate payment of all moneys due by the Customer in respect of all Goods which will then be immediately due and payable notwithstanding the due date or dates for payment; and/or

(e) continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due. In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Vision. Such part will be an amount equal in dollar terms to the amount owing by the Customer to Vision at the time of the receipt of such proceeds. The Customer will pay to Vision such funds held in trust upon the demand of Vision.

Warranties and limitation of liability

11.1 Vision warrants that Goods delivered to the Customer will comply with any description and any Specifications for the Goods and be free from defects.

11.2 Vision warrants any failure of the Goods for 12 months from the Delivery Time (“Warranty Period”), except:

(a) in circumstances set out in clause 11.9;

(b) where the Goods have not been installed, stored or used in a proper manner by the

Customer;

(d) where the defects do not arise solely from a defect by Vision; and

(e) the defects appear outside the Warranty Period.

11.3 During the Warranty Period, if Vision is satisfied that a Good is defective Vision will refund, repair or replace such defective Goods (at the Vision’s option). In the case of a replacement, Goods shall be replaced with the same or equivalent goods subject to availability.

11.4 The Customer warrants that in placing its Order it has:

(a) satisfied itself as to the description and condition of the Goods and their fitness for the purpose for which the Customer will use them; and

(b) not relied on any statement, representation, warranty or guarantee by Vision in respect of the Goods, other than those expressly contained in this document, the Specifications or any other document that Vision has provided to the Customer.

11.5 If the Customer is deemed to be a consumer pursuant to the Australian Consumer Law then:

Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

11.6 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms or in another warranty document given by Vision are excluded and Vision is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for any indirect or consequential damages, loss of profit, loss of bargain or liability to any third party.

11.7 Vision’s liability to the Customer is limited to the Price for the Goods.

11.8 In order to make a claim under the warranty contained in this clause 11, the Customer must:

(a) notify Vision in writing within 7 days of the alleged defect first coming to the Customer’s attention and within the Warranty Period;

(b) provide Vision all information required, including serial numbers, photos of the alleged defect, and evidence of proof of purchase;

(c) provide evidence that the Goods have been installed correctly and have been used in accordance with any manufacturer instructions supplied with the Goods; and

(d) make the Goods available for inspection by Vision so that Vision may determine if the notice of defect or damage is valid.

11.9 To the full extent permitted by law, the warranty under this clause 11 does not apply if:

(a) any fault or damage is caused by incorrect installation, storage or use of the Goods other than in accordance with the instructions supplied by Vision;

(b) unauthorised repairs, alteration, modification or substitution of any part of the Goods;

(c) Goods have been altered, broken or damaged due to misuse, tampered with in any way or the fault arises from repairs carried out by persons other than Vision personnel or personnel authorised by Vision;

(d) the fault arises from normal wear and tear, accident and/or neglect;

(e) damage caused during transit of the Goods to the Customer’s nominated delivery address (where it is collected by the Customer);

(f) the failure arises from factors beyond Vision’s control such as electrical discharges, accidental tampering, accidental impact, exposure of the Goods to moisture, steam, extreme environmental or heat conditions, floods or other natural disasters or other factors associated with the site or structure to which the Goods may be affixed to (such as a defective ceiling);

(g) Operation of the Goods after defect is known;

(h) Any Goods with serial number removed (where applicable).

11.10 The Customer will bear the cost of all transportation or freight charges or any other charges incurred in returning defective Goods for repair, refund or replacement, together with the cost of returning them to the Customer, unless otherwise determined by Vision.

Indemnity

12.1 To the full extent permitted by law, the Customer agrees to indemnify and keep indemnified Vision against all costs, claims, demands, expenses and liabilities of whatsoever nature (including claims of death, personal injury, damage to property and consequential loss (including loss of profit)), suffered or incurred by, or made against, Vision as a result of a breach of this document by the Customer, the Customer’s use of the Goods, or any other conduct of the Customer or its employees or representatives in relation to this document and the Goods, except to the extent those costs, claims, demands, expenses or liabilities are directly and solely attributable to the gross negligence or willful default of Vision or any of its duly authorised employees or agents.

Privacy

13.1 In connection with any application for credit with Vision, the Customer consents to Vision

giving personal particulars and details about the Customer to a credit reporting agency to obtain a credit report containing personal credit information about the Customer.

13.2 The Customer agrees that Vision may exchange personal particulars and details about the Customer (including anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth)) with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the purposes of assessing an application by, and the creditworthiness of, the Customer.

13.3 The Customer agrees that personal credit information provided to, or obtained under clauses 13.1 and 13.2 by, Vision may be used and retained by Vision in relation to the provision of the Goods; the marketing of Goods by Vision, its agents or distributors; analysing, verifying or checking the Customer’s credit, payment or status in relation to the provision of Goods; processing any payment instructions, direct debit facilities or credit facilities requested by the Customer; enabling the daily operation of the Customer’s account and the collection of amounts outstanding in the Customer’s account in relation to the Goods; and/or for any other purposes agreed between the parties or required by law from time to time.

Confidentiality and Copyright

14.1 The Customer will treat as confidential all information, data, drawings, Specifications, samples and documentation supplied by Vision relating to the Goods, and will not disclose them to any third party without the prior written consent of Vision and on payment of any applicable licence fees for such information unless required by law. Vision claims copyright in any designs or drawings produced by it.

15. Dispute resolution

15.1 If there is a dispute in relation to any aspect of the supply of the Goods either party may notify the other in writing of the dispute.

15.2 Following any such notification, there will be a period of 30 days during which both parties must participate in good faith in any negotiations or discussions regarding the dispute which Vision requests the Customer to participate in.

15.3 If the dispute has not been resolved by the end of this 30 day period, Vision may require that the dispute be submitted to mediation in accordance with, and subject to, the Institute of Arbitrators & Mediators Australia and its applicable rules.

15.4 Neither party is permitted to commence any court proceedings or other similar actions relating to a dispute unless it has complied with the procedure set out in this clause except in the case of obtaining injunctive, declaratory or other interlocutory relief from a court which may be urgently required.

Guarantee

16.1 The Guarantor unconditionally and irrevocably guarantees to Vision the due and punctual performance and observance by the Customer of all under this document that must be performed and observed by the Customer (Guaranteed Obligations).

16.2 The Guarantor unconditionally and irrevocably indemnifies Vision against all liabilities which Vision may now or in the future suffer or incur consequent on or arising directly or indirectly out of any breach or non-observance by the Customer of a Guaranteed Obligation.

16.3 This clause 16 is a principal obligation (and is not to be treated as ancillary or collateral to another right or obligation) and is independent of, and not in substitution for or affected by, another security interest or guarantee or other document or agreement which Vision or another person may hold concerning the Guaranteed Obligations.

16.4 Vision may enforce this clause 16 against the Guarantor without first having to resort to action against the Customer.

16.5 The Guarantor acknowledges and agrees that it has had the opportunity to obtain independent legal advice before executing these Terms in particular as to the implications of this clause 16 and understands that it may be liable for all amounts owing (both now and in the future) by the Customer to Vision.

17. General provisions

17.1 The Customer must not assign or otherwise deal with any of its rights or obligations under this document without the prior written consent of Vision.

17.2 Vision may assign or deal with any of its rights or obligations under this document at any time. Vision reserves the right to subcontract the performance of any of its obligations under this document.

17.3 Vision may vary this document from time to time and any variation takes effect in relation to subsequent Orders placed after the Customer has received written notice of the variation from Vision.

17.4 No failure to exercise or delay in exercising any right under this document constitutes a waiver and any right may be exercised in the future. A waiver of any right under this document must be in writing and is only effective to the extent set out in that written waiver.

17.5 If any provision of this document is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this document without affecting the validity or enforceability of the remaining provisions.

17.6 This document constitutes the entire agreement between the parties in respect of the sale of Goods and supersedes all previous communications, representations, understandings or agreements.

17.7 This document is governed by the laws in force in New South Wales and the parties submit to the non exclusive jurisdiction of the courts of New South Wales.

17.8 Any requirement for a written notice, Quotation or Order is satisfied if given by email, facsimile or post, or providing a link enabling download from Vision’s website.

17.9 Any clause intended by its nature to survive termination or completion of this document survives termination or completion of this document, including clause 8 and clauses 11 to 17.

17.10 Any Intellectual Property Rights in the Goods and any instructions relating to them remain with Vision and do not pass to the Customer. Vision grants to the Customer a non exclusive, non-transferable, royalty free licence to use Vision’ intellectual property to the extent such materials form part of, or are integral to, the Goods. The Customer warrants that the use by Vision of any intellectual property provided by the Customer to Vision so that Vision may provide the Goods under these Terms does not infringe any Intellectual Property Rights. The Customer must indemnify and keep indemnified Vision against any and all liabilities, expenses, losses and/or damages including attorney’s fees whether direct, indirect or consequential, arising from a third party, alleging that the Goods infringe the Intellectual Property Rights of the third party due to Vision’s use in the production of the Goods of any branding, artwork or other intellectual property provided to Vision by the Customer.

Terms & Conditions