In these Sales Terms and Conditions (Sales Terms) ”we”, “us” or “our” means Everlite Pty Ltd. ABN 47 160 269 438, its successors and assignees, (referred to as “we”, “us”, “our” or “Seller”) and you, the person, organisation or entity that purchases products or related services from us (referred to as “you”, “your” or “Buyer”), and collectively the Parties. These Sales Terms apply to all sales made by us to you.
1. General and Acceptance
- These Sales Terms form the agreement under which we will supply products and related services to you. Please read these Sales Terms carefully. If you have any questions, please contact us at our head office, before you purchase products or related services from us.
- Acceptance: You accept our Sales Terms by making a purchase from us. Your purchase from us indicates that you have had sufficient opportunity to access these Sales Terms and contact us, that you have read, accepted and will comply with these Sales Terms. If you do not agree to these Sales Terms, you should not purchase from us.
2. Products and Orders
- You may view products at our showroom by organising an appointment with us. Alternatively, we can come to you, where convenient to us.
- Payment terms, delivery times and quote validity is set out in our quote. We may at our discretion accept or reject an order depending on factors including availability of products or services and our ability to validate payment for the products or services.
- It is your responsibility to check the order details, including the product or service ordered and pricing, before you confirm and place your order. Any quotation or tender is not a binding offer by us and may be withdrawn at any time.
- We will provide you with order details, which may include a sales order, tax invoice, order number, an order ID, the shipping and billing addresses and a description of what was ordered, when you confirm and place your order. If you wish to change or vary your order, including to add or remove products or services, or to change the delivery date, you must let us know as soon as possible and we will let you know if we can accommodate the change and provide you with an updated quote. Please note, as per clause 6(d), delivery periods are an estimate only, based on the information provided by our nominated carrier. The Buyer acknowledges that the delivery times are an estimate only and failure to deliver by the delivery date does not give the Buyer the right to cancel or repudiate the order.
- When order becomes binding: A binding agreement comes into existence between you and us once we have given you a sales order or tax invoice.
- Special or custom orders: Orders for products with non-standard product features or which are products that are not included within our standard product catalogue or which are custom made and designed are “Special Orders”. You acknowledge that we may have limited stock of a Special Order, however where possible we will accommodate and fulfil any Special Orders. If you order a custom-designed Special Order and you cancel your order for a Special Order after manufacturing has commenced, you agree to pay a cancellation charge which is commensurate with the considerable time and effort we spend in developing, designing and manufacturing the custom-designed Special Order for you.
- Changes: No changes to these Sales Terms will be effective unless we both agree to the changes in writing.
3. Price and Payments
- We require payments as outlined in the quote or tax invoice and cannot accept variations to this. The Buyer agrees to pay the price specified on our quote or tax invoice by thepayment date specified on our tax invoice or quote, plus any applicable delivery and insurance charges based on the delivery options selected by the Buyer.
- We generally require payment up front.
- We may offer selected customers credit accounts, in our sole discretion. Where we offer to set up an account for you, our formal credit application must be completed, signed and returned to us before we will commence the manufacture or delivery of any products. Your tax invoice will set out the terms of credit (if any) and when payment must be made.
- All amounts are stated in Australian dollars. All purchase prices exclude Australian GST. Any delivery and insurance charges will be separately shown.
- You must pay for the product or services by one of the methods set out on our quote. Your payment will be processed upon receipt of your order. You must not pay, or attempt to pay, for an order through any fraudulent or unlawful means. If your payment is not able to be successfully processed then your order may be cancelled.
- We may charge interest at the rate of 2% per month on any amounts unpaid. If you do not pay by the due date, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.
4. Price lists
- In the absence of a written quote or tender, we will supply our products at the prices specified in our price list.
5. Availability and Cancellation
- All purchases made with the Seller are subject to availability. We do our best to keep in stock most products.
- If there is a considerable delay in dispatching your order or supplying products to you, or if for any reason we cannot supply a product or service you have ordered, we will contact you using the contact details provided by you when you placed the order. You can choose a refund, store credit or to put your order on backorder. If you choose a refund or store credit, any delivery costs you have paid for the product will be refunded to you. If you choose to put your order on backorder, we will contact you to arrange for supply/delivery once the product or service is available (as the case may be).
- If certain products are out of stock or discontinued, we may from time to time substitute a product with another product of similar appearance, value and size. Where an item is substantially different, we will obtain your permission to substitute the item.
6. Delivery, Delivery Cost and Delivery Packaging
- Location: We deliver Australia wide, other than any exclusions set out on our website or that we inform you of. If you are unsure of our delivery options or if you would like further information, please contact us.
- Cost: We may offer free delivery for some products to some areas, in some situations. If free delivery does not apply, a delivery fee will apply.
- Packing: No charge is payable for packaging except the costs of crates, cases or other containers. This cost will be set out in our tax invoice or quote. The cost of any crates, cases or other containers will be refunded to the customer on returning the crate, case or other container, as the case may be, to our warehouse in merchantable condition.
- Timing: We will normally dispatch the product within 3 business days from the receipt of your order confirmation, unless otherwise noted. Any delivery periods displayed are estimates only, based on the information provided by our nominated carrier. We will deliver the product to the place of delivery you specify when making your order.
- Change: If you need to change a delivery date or the delivery address, please contact us as soon as possible to see if this is possible. If you are not available to take delivery on the agreed delivery date, you may be charged a delivery fee for each additional attempt for delivery.
- Method: We may deliver the products via a range of delivery methods. All deliveries must be signed for. For small items, if neither you nor your authorised representative is at the delivery address to accept delivery you will be notified, generally by the delivery company leaving a card with contact details, so that you can arrange another delivery time and date. For larger items or large orders, you must ensure that there is sufficient access and space for the products to be delivered. You will provide all necessary and reasonable assistance in unloading the products at the delivery address.
- Title and Risk: Title in the products will not pass to you until the later of delivery, or your payment has been processed or otherwise received by us. Delivery occurs when (i) the products are left by us (or our nominated carrier) at the delivery address you nominate or (ii) you or your nominated carrier takes possession of the products at our warehouse. If your payment is declined for any reason we reserve the right to reclaim the products from your possession, custody or control even if they have been delivered to you or moved from the delivery address. We reserve the right to keep or sell the products. Risk of loss, damage or deterioration to any products will pass to you once the product is delivered to the address you provide.
- Delivery installments: We may deliver the products in installments and you agree that you will accept each delivery. We will notify you if we need to deliver the products in installments.
7. Intellectual Property Rights
- Intellectual Property Rights mean all present and future rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights (Intellectual Property Rights).
- We own all Intellectual Property Rights in the business, products, services and branding, as between us and you. The products contain material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the copyright which subsists in all creative and literary works incorporated into our Materials.
- You must not breach our Intellectual Property Rights by, including but not limited to altering or modifying any of the Materials, creating derivative works from the Materials or using our Materials for commercial purposes such as onsale to third parties.
- Your feedback is important to us. We seek to resolve any concerns quickly and effectively. If you have any feedback or questions about our products or services, please contact us. If there is a dispute between the Parties in relation to these Sale Terms, the Parties agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
- Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Sales Terms, by law or in equity.
9. Consumer Law
- ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
- Goods & Services: If you are a consumer as defined in the ACL, the following notice applies to you: “Our goods and services come with warranties and guarantees that cannot be excluded under the Australian Consumer Law (Consumer Guarantees). You are entitled to a replacement or a refund for a major failure and for 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. You are also entitled to have services remedied if they are not rendered with due care and skill or they are not fit for purpose and the failure does not amount to a major failure.”
- Nothing in these Sales Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for goods provided to a person or entity defined as a “consumer” under the ACL is governed solely by the ACL and these Sales Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
- Warranties: Seller: Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose. Manufacturer: Products may come with a manufacturer’s warranty. The manufacturer’s warranty is in addition to but may overlap with any rights and remedies you may have under applicable law, including any Consumer Guarantees. If you are not considered a “consumer” within the meaning of the ACL, the manufacturer’s warranty may be your sole remedy. Details of any specific warranties applying to our products are set out at Schedule 1.
10. Return, Refund and Exchange Policy
- Products may only be returned if the Seller has provided its written consent. Please contact the Seller if you wish to seek a return. Special Orders are not refundable, subject to your Statutory Rights and any manufacturer’s warranty.
- Repair, replacement or a refund: If you wish to seek repair, resupply, replacement or a refund for a product or service, you must notify us within seven (7) business days of delivery. Please contact us and we will explain any requirements to you. This may include you providing proof of purchase and evidence of the faulty product to us.
- Refund: If you are entitled to a refund, we will only give you the refund once evidence of faulty product is received by us, or we have received the product at our warehouse and inspected it and assessed whether it is eligible for a refund under these Sales Terms. You must adequately package any product you are returning to ensure that it is not damaged during return delivery. Any refund we make will be by the same payment method used to purchase the product or service.
- Duty of care: You have a duty of care for the product while it is in your possession. If you damage products, then subsequently return the products, you may be liable to pay to repair the product to its original condition. In these circumstances, where a repair is not economically viable, no refund will be made.
- Change of mind: We do not accept returns for change of mind.
11. Limitation of Liability and Disclaimers
- While the information and material contained in our quote or elsewhere is believed to be accurate and current, it is provided by us in good faith on an “as is” basis, and we and our directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy or completeness of the information contained on the website, quote or elsewhere.
- Certain legislation including the ACL and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of goods or services to you by us which cannot be excluded, restricted or modified. Our liability is governed solely by the ACL and these Sales Terms.
- To the extent permitted by law, we exclude all conditions and warranties, except for your Statutory Rights including but not limited to:
- we expressly disclaim any implied or express guarantees, representations or conditions of any kind, which are not stated in these Sales Terms; and
- we will not be liable for any loss, damage, injury, death, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with our website, inability to access or use our website, the products, the services, the late supply of products or services, or these Sales Terms, even if we were expressly advised of the likelihood of such loss or damage.
- To the extent permitted by law, our total liability arising out of or in connection with the products, the services or these Sales Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total price paid by you for the purchase of products and/or services under these Sales Terms.
- This clause will survive termination of these Sales Terms.
These Sales Terms may be amended from time to time; we will provide you with 14 days’ notice of the varied Sales Terms. Your purchase from us following any such amendments will be deemed to be confirmation that you accept those amendments. If you have reasonable grounds to believe that the varied Sales Terms will be detrimental to your rights, you may terminate these Sales Terms without penalty within 14 days of receiving notice of the varied Sales Terms. We recommend that you check the current Sales Terms before purchasing a product. Our agents, employees and third parties do not have authority to change these Sales Terms.
You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your breach of these Sales Terms. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our products or services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. The obligations under this clause will survive termination of these Sales Terms.
- Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
- Accuracy: While we endeavour to keep information up to date and correct, we make no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on our website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
- Termination: We reserve the right to refuse supply of the products or services ordered by you and terminate our contract with you in our sole discretion, without incurring any liability to you. We may terminate our contract with you, in our sole discretion, without incurring any liability to you, if:
- you commit a non-remediable breach of these Sales Terms;
- you commit a remediable breach of these Sales Terms and do not remedy the breach within 14 days after receiving notice of the breach.
- GST: If and when applicable, GST payable on our services or products will be set out in our tax invoices. By accepting these Sales Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
- Relationship of Parties: These Sales Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Sales Terms if such delay is due to any circumstance beyond our reasonable control.
- Notice: Any notice in connection with these Sales Terms will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the Party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other Party.
- Waiver: Any failure by a Party to insist upon strict performance by the other of any provision in these Sales Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of these Sales Terms shall be effective unless we expressly state it is a waiver and we communicate to you in writing.
- Assignment: You must not assign any rights and obligations under these Sales Terms, whether in whole or in part, without our prior written consent.
- Severability: If any of these Sales Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- Jurisdiction and Applicable Law: These Sales Terms are governed by the laws of New South Wales and the Commonwealth of Australia and are subject to the exclusive jurisdiction of the courts operating in New South Wales.
- Entire Agreement: These Sales Terms and any document expressly referred to in them represent the entire agreement between the Buyer and the Seller and supersede any prior agreement, understanding or arrangement between the Buyer and the Seller, whether oral or in writing.