TERMS AND CONDITIONS OF TRADE
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Koda Lighting to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.2 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Koda Lighting’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.5 “Goods” means all Goods or Services supplied by Koda Lighting to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Koda Lighting” means Koda Lighting Pty Ltd ATF McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person acting on behalf of and with the authority of Koda Lighting Pty Ltd ATF McCall Fox Family Trust T/A Koda Lighting.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Koda Lighting and the Client in accordance with clause 5 below.
2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the Client has completed a credit application with Koda Lighting and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Koda Lighting reserves the right to refuse delivery; and
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Koda Lighting reserves the right to vary the Price with alternative Goods as per clause 5.2, Koda Lighting also reserves the right to halt all Services until such time as Koda Lighting and the Client agree to such changes.
2.5 Any advice, recommendation, information, assistance or service provided by Koda Lighting in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on Koda Lighting’s own knowledge and experience and shall be accepted without liability on the part of Koda Lighting. Where such advice or recommendations are not acted upon then Koda Lighting shall require the Client or their agent to authorise commencement of the Services in writing. Koda Lighting shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services. Accordingly, Koda Lighting offers no warranty in regard to the aforementioned.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Koda Lighting shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Koda Lighting in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Koda Lighting in respect of the Services.
3.2 In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) ("Client Error"). The Client must pay for all Goods it orders from Koda Lighting notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. Koda Lighting is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.
4. Change in Control
4.1 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Koda Lighting as a result of the Client’s failure to comply with this clause.
5.1 At Koda Lighting’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Koda Lighting to the Client upon placement of an order for Goods; or
(b) Koda Lighting’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Koda Lighting reserves the right to change the Price if a variation to Koda Lighting’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Koda Lighting in the cost of taxes, levies, materials and labour, change in design etc.) will be charged for on the basis of Koda Lighting’s quotation, and will be detailed in writing, and shown as variations on Koda Lighting’s invoice. The Client shall be required to respond to any variation submitted by Koda Lighting within ten (10) working days. Failure to do so will entitle Koda Lighting to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At Koda Lighting’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by Koda Lighting or as notified to the Client prior to the placement of an order for Goods.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Koda Lighting, which may be:
(a) on or before delivery of the Goods; or
(b) strictly thirty (30) days following the date of any invoice; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Koda Lighting.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Koda Lighting.
5.6 Koda Lighting may in its discretion allocate any payment received from the Client towards any invoice that Koda Lighting determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Koda Lighting may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Koda Lighting, payment will be deemed to be allocated in such manner as preserves the maximum value of Koda Lighting’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Koda Lighting nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify Koda Lighting in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Koda Lighting investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Koda Lighting placing the Client’s account into default and subject to default interest in accordance with clause 14.1.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Koda Lighting an amount equal to any GST Koda Lighting must pay for any supply by Koda Lighting under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Koda Lighting’s address; or
(b) Koda Lighting (or Koda Lighting’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 The cost of Delivery will be payable by the Client in accordance with the quotation provided by Koda Lighting to the Client, or as otherwise notified to the Client prior to the placement of an order for Goods.
6.3 Koda Lighting may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
6.5 Any time specified by Koda Lighting for Delivery of the Goods is an estimate only and Koda Lighting will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If Koda Lighting is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Koda Lighting shall be entitled to charge a reasonable fee for redelivery and/or storage.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Koda Lighting is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Koda Lighting is sufficient evidence of Koda Lighting’s rights to receive the insurance proceeds without the need for any person dealing with Koda Lighting to make further enquiries.
7.3 If the Client requests Koda Lighting to leave Goods outside Koda Lighting’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
7.4 The Client acknowledges that Goods supplied may exhibit variations in shade tone, colour, texture, surface and finish, and may fade or change colour over time. Koda Lighting will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
8.1 The Client and Koda Lighting shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
9. Title
9.1 Koda Lighting and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Koda Lighting all amounts owing to Koda Lighting; and
(b) the Client has met all of its other obligations to Koda Lighting.
9.2 Receipt by Koda Lighting of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:
(a) the Client is only a bailee of the Goods and must return the Goods to Koda Lighting on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Koda Lighting and must pay to Koda Lighting the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Koda Lighting and must pay or deliver the proceeds to Koda Lighting on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Koda Lighting and must sell, dispose of or return the resulting product to Koda Lighting as it so directs;
(e) the Client irrevocably authorises Koda Lighting to enter any premises where Koda Lighting believes the Goods are kept and recover possession of the Goods;
(f) Koda Lighting may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Koda Lighting; and
(h) Koda Lighting may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Koda Lighting to the Client, and the proceeds from such Goods.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Koda Lighting may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii).
(b) indemnify, and upon demand reimburse, Koda Lighting for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Koda Lighting;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Koda Lighting; and
(e) immediately advise Koda Lighting of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
10.4 Koda Lighting and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Koda Lighting, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Koda Lighting under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of Koda Lighting agreeing to supply the Goods and/or provide its Services, the Client grants Koda Lighting a security interest by way of a floating charge (registerable by Koda Lighting pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit Koda Lighting to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
11.2 The Client indemnifies Koda Lighting from and against all Koda Lighting’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Koda Lighting’s rights under this clause.
11.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 9.1,10.2 and 11.1 as applicable, is deemed insufficient by Koda Lighting to secure the repayment of monies owed by the Client to Koda Lighting, the Client hereby grants Koda Lighting a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on Delivery and must within ten (10) days of Delivery notify Koda Lighting in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Koda Lighting to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 Koda Lighting acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Koda Lighting makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Koda Lighting’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Koda Lighting’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Koda Lighting is required to replace the Goods under this clause or the CCA, but is unable to do so, Koda Lighting may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Koda Lighting’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Koda Lighting at Koda Lighting’s sole discretion;
(b) limited to any warranty to which Koda Lighting is entitled, if Koda Lighting did not manufacture the Goods; and/or
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Koda Lighting has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Koda Lighting shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Koda Lighting; and/or
(e) fair wear and tear, any accident, or act of God.
12.10 The warranty shall cease, and Koda Lighting shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without Koda Lighting or the manufacturer’s consent.
12.11 in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either replacing or remedying the defective Goods or Services or in properly assessing the Client’s claim.
12.12 For Goods not manufactured by Koda Lighting, the warranty shall be the current warranty provided by the manufacturer of the Goods. Koda Lighting shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
12.13 Koda Lighting shall not be liable for any removal and/or installation costs for Goods already installed.
12.14 Koda Lighting may in its absolute discretion accept non-defective Goods for return within twelve (12) months of delivery, in which case Koda Lighting may require the Client to pay handling fees of up to fifty percent (50%) of the value of the returned Goods plus any freight costs.
12.15 Notwithstanding anything contained in this clause if Koda Lighting is required by a law to accept a return, then Koda Lighting will only accept a return on the conditions imposed by that law.
12.16 Subject to clause 12.1, customised, or non-stocklist items, incidental items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
13. Intellectual Property
13.1 Where Koda Lighting has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Koda Lighting. Under no circumstances may such designs, drawings and documents be used without the express written approval of Koda Lighting.
13.2 The Client warrants that all designs, specifications, or instructions given to Koda Lighting will not cause Koda Lighting to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Koda Lighting against any action taken by a third party against Koda Lighting in respect of any such infringement.
13.3 The Client agrees that Koda Lighting may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Koda Lighting has created for the Client.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Koda Lighting’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Koda Lighting any money, the Client shall indemnify Koda Lighting from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising Koda Lighting’s rights under these terms and conditions, internal administration fees, Koda Lighting’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
14.3 Further to any other rights or remedies Koda Lighting may have under this Contract, if a Client has made payment to Koda Lighting, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Koda Lighting under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
14.4 Without prejudice to Koda Lighting’s other remedies at law Koda Lighting shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Koda Lighting shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Koda Lighting;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
15.2 If Koda Lighting, due to reasons beyond Koda Lighting’s reasonable control, is unable to deliver any Goods and/or Services to the Client, Koda Lighting may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice Koda Lighting shall repay to the Client any money paid by the Client for the Goods and/or Services. Koda Lighting shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 The Client may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order, prior to the Goods being dispatched. If the Client cancels Delivery in accordance with this clause 15.3, the Client will not be liable for the payment of any costs of Koda Lighting, except where a deposit is payable in accordance with clause 5.2.
15.4 However, cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
16. Privacy Policy
16.1 All emails, documents, images, or other recorded information held or used by Koda Lighting is Personal Information, as defined and referred to in clause 16.4, and therefore considered Confidential Information. Koda Lighting acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Koda Lighting acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Koda Lighting that may result in serious harm to the Client, Koda Lighting will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
16.2 Notwithstanding clause 16.1, privacy limitations will extend to Koda Lighting in respect of Cookies where the Client utilises Koda Lighting’s website to make enquiries. Koda Lighting agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Koda Lighting when Koda Lighting sends an email to the Client, so Koda Lighting may collect and review that information (“collectively Personal Information”).
If the Client consents to Koda Lighting’s use of Cookies on Koda Lighting’s website and later wishes to withdraw that consent, the Client may manage and control Koda Lighting’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
16.3 The Client agrees for Koda Lighting to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Koda Lighting.
16.4 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
16.5 The Client consents to Koda Lighting being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
16.6 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.7 Koda Lighting may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.8 The information given to the CRB may include:
(a) Personal Information as outlined in 16.4 above;
(b) name of the credit provider and that Koda Lighting is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided Koda Lighting is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Koda Lighting has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement; or
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.9 The Client shall have the right to request (by e-mail) from Koda Lighting:
(a) a copy of the Personal Information about the Client retained by Koda Lighting and the right to request that Koda Lighting correct any incorrect Personal Information; and
(b) that Koda Lighting does not disclose any Personal Information about the Client for the purpose of direct marketing.
16.10 Koda Lighting will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
16.11 The Client can make a privacy complaint by contacting Koda Lighting via e-mail. Koda Lighting will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
(e) if sent by email to the other party’s last known email address.
17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18. Trusts
18.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Koda Lighting may have notice of the Trust, the Client covenants with Koda Lighting as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not during the term of the Contract without consent in writing of Koda Lighting (Koda Lighting will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.
19. General
19.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
19.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
19.4 Koda Lighting may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
19.5 The Client cannot licence or assign without the written approval of Koda Lighting.
19.6 Koda Lighting may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Koda Lighting’s sub-contractors without the authority of Koda Lighting.
19.7 The Client agrees that Koda Lighting may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Koda Lighting to provide Goods to the Client.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Koda Lighting, once the parties agree that the Force Majeure event has ceased.
19.9 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
19.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
19.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.
1. Definitions
1.1 “Koda Lighting” means Koda Lighting Pty Ltd ATF McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person acting on behalf of and with the authority of Koda Lighting Pty Ltd ATF McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Koda Lighting to provide the Goods and/or Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by Koda Lighting to the Client at the Client’s request from time to time.
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Koda Lighting and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Koda Lighting.
2.3 None of Koda Lighting’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Koda Lighting in writing nor is Koda Lighting bound by any such unauthorised statements.
2.4 The Client acknowledges and accepts that the supply of Goods on credit shall not take effect until the Client has completed a credit application with Koda Lighting and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Koda Lighting reserves the right to refuse delivery.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Koda Lighting shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Koda Lighting in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Koda Lighting in respect of the Goods.
3.2 In the circumstances where the Client is required to place an order for Goods, in writing, against a quotation provided by Koda Lighting, the Client acknowledges that:
(a) the Client has the responsibility to ensure the accuracy of the order placed; and
(b) the Client shall pay for all Goods supplied.
4. Change in Control
4.1 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice).
4.2 The Client shall be liable for any loss incurred by Koda Lighting as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Koda Lighting to the Client; or
(b) the Price as at the date of delivery of the Goods according to Koda Lighting’s current price list; or
(c) Koda Lighting’s quoted Price (subject to clause 5.2).
5.2 Koda Lighting reserves the right to change the Price if a variation to Koda Lighting’s quotation is requested.
5.3 Koda Lighting may require the Client to pay a deposit.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Koda Lighting, which may be:
(a) on delivery of the Goods; or
(b) before delivery of the Goods; or
(c) by way of instalments/progress payments in accordance with Koda Lighting’s payment schedule; or
(d) thirty (30) days following the end of the month in which the invoice is issued; or
(e) the date specified on any invoice.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed between the Client and Koda Lighting.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Koda Lighting an amount equal to any GST Koda Lighting must pay for any supply by Koda Lighting under this or any other agreement.
6. Delivery
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Koda Lighting’s address; or
(b) Koda Lighting (or Koda Lighting’s nominated carrier) delivers the Goods to the Client’s nominated address.
6.2 At Koda Lighting’s sole discretion the cost of delivery is either included in the Price or in addition to the Price.
6.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery.
6.4 Koda Lighting may deliver the Goods in separate instalments.
6.5 Any time or date given by Koda Lighting to the Client is an estimate only.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Koda Lighting is entitled to receive all insurance proceeds payable.
8. Title
8.1 Koda Lighting and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Koda Lighting all amounts owing; and
(b) the Client has met all other obligations due by the Client to Koda Lighting.
8.2 Receipt by Koda Lighting of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured.
8.3 It is further agreed that:
(a) until ownership passes, the Client must hold the Goods on behalf of Koda Lighting;
(b) the Client must store the Goods separately;
(c) the Client must not charge or encumber the Goods.
9. Personal Property Securities Act 2009 (PPSA)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 The Client acknowledges that these terms constitute a security agreement.
9.3 The Client agrees to sign any further documents and/or provide information necessary for Koda Lighting to register a financing statement.
10. Security and Charge
10.1 In consideration of Koda Lighting agreeing to supply the Goods, the Client charges all of its rights, title and interest in any land, realty or other assets.
10.2 The Client indemnifies Koda Lighting from any losses incurred.
11. Defects, Warranties and Returns
11.1 The Client shall inspect the Goods on delivery and notify Koda Lighting within ten (10) days of any alleged defect.
11.2 Defective Goods may be returned.
11.3 Koda Lighting may, at its discretion, accept non-defective returns subject to a handling fee of up to 50% of the value of the returned Goods plus freight costs.
11.4 Special or custom-made Goods are non-returnable.
12. Intellectual Property
12.1 All drawings, documents and intellectual property remain the property of Koda Lighting.
12.2 The Client shall not use the intellectual property without written permission.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily at 2.5% per month.
13.2 The Client shall indemnify Koda Lighting from all costs and disbursements incurred in pursuing the debt.
14. Cancellation
14.1 Koda Lighting may cancel any contract if the Client breaches any term.
14.2 Orders for non-stock or custom Goods cannot be cancelled once production has commenced.
15. Privacy Act 1988
15.1 The Client authorises Koda Lighting to obtain credit information.
15.2 The Client agrees that Koda Lighting may exchange information with credit reporting agencies.