Sale Terms and Conditions
ADVATEK LIGHTING SALE TERMS AND CONDITIONS
These terms and conditions and the Quote (Terms) are between Advatek Lighting Pty Ltd (ABN 23 164 273 107), (we, us or our) and you, the person or entity placing an order for Goods and Services through the Site, or stated in the Quote (you or your), together the Parties and each a Party.
Our Disclosures: Please read these Terms carefully and contact us if you have any questions. By accepting these Terms, you agree that:
- you may be required to pay our costs if you fail to comply with certain clauses within these Terms (e.g. if you fail to make payment of the Price (see clause 10.4), or if we incur costs as a result of termination of these Terms (see clauses 14.2(d));
- your failure to pay the Price in accordance with the Payment Terms may result in us recovering or repossessing the Goods, charging you interest, or suspending the provision of the Goods and Services until we receive payment (see clause 10.2);
- we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise), (see clause 10.5);
- subject to your Consumer Law Rights, we will not refund any amounts paid by you (see clause 14.2(b));
- subject to your Consumer Law Rights, we exclude our liability for any loss or damage which is the inevitable and unavoidable part of performing the Goods and Services (see clause 15(d)); and
- subject to your Consumer Law Rights, our liability for the provision of the Goods and Services will be limited to repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods and Services, to which the Liability relates (see clause 15(b)).
1.1 You have requested the Goods and Services set out on our website (Site) or in the Quote, and you are taken to have accepted these Terms by the earlier of:
(a) placing an order via the Site;
(b) accepting the Quote online or sending an email to us accepting the Quote (expressly or impliedly);
(c) instructing us to proceed with the Goods and Services; and
(d) making any payment of the Price (including any deposit).
2. Goods and Services
2.1 In consideration of your payment of the Price, we agree to provide the Goods and Services to you in accordance with these Terms (including any Specifications).
2.2 We may provide the Goods and Services to you ourselves, or through our Personnel.
2.3 We will use our commercial best endeavours to provide the Goods and Services by the dates set out in the Quote. You agree that such time is an estimate only, and creates no obligation on us to supply the Goods and Services by that time. Where no date is specified, we will provide the Goods and Services within a reasonable period of time.
2.4 You acknowledge and agree that in order to use the Goods, you may be required to download our software and your use of the software may be subject to the terms of our end user licence agreement.
3. Your Consumer Law Rights
3.1 Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law (Consumer Law Rights). Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
3.2 Where you return products to us to seek an Australian Consumer Law remedy, you may need to cover any associated costs (for example delivery costs) of you returning the products to us.
3.3 Where your claim is a valid claim under the Australian Consumer Law, we will refund your reasonable return delivery costs or provide you with a return label and, depending on the failure, either dispatch a new or repaired replacement product or refund you the Price of the relevant product. Please contact us for further information.
4. Warranty against defects
4.1 In Australia, our Goods and Services come with guarantees which 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.
4.2 In addition to your Consumer Law Rights we warrant to you that the Goods we supply to you will be free from Defects for:
(a) the period stated on the Site or the Quote in relation to the relevant Goods; or
(b) if no period is stated on the Site or the Quote, 12 months from the date of purchase,
(in each case, the Warranty Period).
4.3 Defects means manufacturer fault, error or defects, but not does not include defects caused by something outside our control, including environmental factors, over voltage, lives wires shorted to the PCB, shorts to external I/O (unless specified as protected), lightning, fire, corrosion, a critical mistake that the customer should have reasonably been able to avoid, user actions that are against instructions in the product's user documentation or where the Goods are used or installed other than in accordance with their designed purpose and operating environment.
4.4 If within the Warranty Period after the delivery or collection of the Goods, you believe you have a product the subject of a Defect you must cease using the Goods and contact us in writing along with a description of the Defect and if requested, photographic evidence. If we ask you to, you must return to us the defective Goods, together with all parts, accessories and proof of purchase to the contact details set out below.
4.5 Subject to your Consumer Law Rights, in relation to any Goods that have Defects within the Warranty Period:
(a) we will pay for the return shipping of any Goods that have Defects that are brought to our attention; and
(b) we will, at our sole discretion, issue a refund, repair the Goods or replace the Goods with an equivalent or improved model.
5. No Refunds
5.1 Without limiting and subject to your Consumer Law Rights, any amounts paid by you to us are not refundable, including any freight, duty or transaction charges, or any deposits.
6. Returns and Credit Notes
6.1 In addition to your Consumer Law Rights and subject to clause 6.2, we may accept change of mind cancellations before the Goods are dispatched or returns of Goods on the following conditions:
(a) the Goods are either:
i. returned to an address nominated by us within 30 days of delivery of the Goods to you (at your cost); or
ii. cancelled at least 24 hours before we have dispatched the Goods; and
(b) the Goods are in brand new condition; and
(c) the total amount of the Quote is under $50,000; and
(d) the Goods are not custom made or modified products (custom made or modified products cannot be returned for a change of mind).
6.2 If a change of mind return is accepted by us in accordance with clause 6.1, the following applies:
(a) Delivery: We will not cover the costs of delivery or re-delivery (including any additional freight, duty or transaction charges). You must cover these yourself.
(b) Original Charges: We will not credit or refund any original freight, duty, or transaction charges.
(c) Exchange or Credit Note: Goods can be returned in exchange for other Goods and/or credit notes that must be used within 12 months of being issued. If the packaging is unopened or the internal seal is completely intact, there is no fee to exchange the product. If opened, we will need to re-test and package the product to ensure its integrity for resale (Integrity Test). The cost for retest and package is the greater of $25 or 3% value of the Goods.
(d) No Cash Refunds: Goods cannot be returned for a cash refund.
6.3 Following an Integrity Test, if we consider the Goods are not suitable for resale, you will not be eligible for an exchange or store credit. We will either invoice you the cost of the Integrity Test or deduct the cost from the store credit. You must pay the amount set out in the invoice, within the timeframe and using the payment method set out in the invoice.
7. Holding Fees
7.1 If you request us to hold or store any Goods for you, we may, at our discretion, charge a holding fee equal to the greater of $100 or 1% of the value of the Goods (as set out in the Quote) per month (Holding Fee). If you fail to make payment of the Holding Fee, we may cancel the Quote and any deposit paid will be non-refundable.
8. Repair and Replacement Offer
8.1 Where a product failure is outside the scope of a Defect, we may offer the service of repair or replacement for a fee.
8.2 We will assess the returned product for repair viability. If we believe it may be repaired, we will provide an estimated price to attempt the repair, which you may accept or not. If you prefer, you may choose to have the faulty product replaced entirely as set out in clause 8.3.
8.3 If the product is not repairable or you prefer, a replacement can be purchased for a discount of 50% off the current retail price. This offer only applies if the failed product is still being actively manufactured by us.
8.4 Advatek reserves the right to make a final determination on individual requests made under this clause. In all cases the product must be returned to us and any freight costs will be at your cost.
9.1 You may request a variation or change to the Goods and Services, including the timing for the supply of the Goods and Services (Variation), by providing written notice (including by email) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree that a Variation will be priced in accordance with the Quote, any schedule of rates provided by us, or as otherwise agreed between the Parties.
9.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 9.1.
10. Price and Payment
10.1 You agree to pay us the Price in accordance with these Terms. All amounts are stated in US dollars (USD) and are exclusive of Taxes (unless otherwise stated).
10.2 Subject to the provisions of these Terms:
(a) you must pay any deposit set out on the Site or in the Quote (if any) to us within 7 days of accepting the Quote or receiving a proforma invoice for payment;
(b) we will issue you an invoice for the balance of the Price and any other amount due and payable to us in accordance with these Terms, and you must pay the amount in the invoice, within the timeframe and using the payment method set out in the invoice, or as otherwise agreed between the Parties.
10.3 Where the Parties have entered into a separate Credit Agreement, the Price (and all other amounts due and payable under these Terms) must be paid in accordance with the Credit Agreement.
10.4 If you fail to make payment of the Price or any amount payable under these Terms or in accordance with the Credit Agreement, we may (at our absolute discretion):
(a) after a period of 5 business days, cease providing the Goods and Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid 7 days after the relevant date for payment;
(c) recover or repossess any Goods belonging to us, and you agree to grant us such rights of access to allow us (or our Personnel) to do so; and/or
(d) commence proceedings against you and recover from you, our additional costs (including legal costs) in doing so.
10.5 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise).
10.6 We may choose to pass on the transaction fees on all orders paid by credit card, PayPal or by other third party payment intermediaries.
10.7 Where you pay by bank transfer, you are responsible for paying all expenses associated with the transfer, including any fees your bank charges to send the payment and any intermediary fees. We agree to pay for any fees we incur from our bank for receiving your payment.
11. Warranties and Representations
11.1 You represent, warrant and agree that:
(a) you will comply with these Terms and all applicable laws;
(b) you will cooperate with us, and promptly provide us with all documentation, information, instructions, facilities and access (including access to the Site) as may be reasonably necessary to enable us to provide the Goods and Services in accordance with these Terms;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Goods and Services; and
(e) that no Insolvency Event has occurred in respect of you and that you will immediately notify us if you are (or you are likely to be) the subject of an Insolvency Event.
12. Title and Risk and Delivery
12.1 As between the Parties, you agree to pay for the reasonable costs of delivering or collecting the Goods.
12.2 Title in the Goods will remain with us until all amounts due and payable to us under these Terms are paid in full.
12.3 Risk in the Goods will be transferred in accordance with the applicable Incoterm (as defined in the Incoterms® rules 2020) set out on the Site or in the Quote and if nothing is stated, Risk in the Goods will pass to you on:
(a) collection of the Goods at the collection location by you or your agent; or
(b) delivery of the Goods to delivery location.
12.4 Where Goods are supplied to you without payment in full, you:
(a) are a bailee of the Goods until title in them passes to you;
(b) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to goods, including the registration of any security interest in our favour with respect to the Goods; and
(c) must not allow any person to have or acquire any security interest in the Goods without our prior written consent.
12.5 We will generally provide the shipment's tracking number within 1 business day of shipping the Goods. If for any reason you do not receive the tracking number notification from us in the expected time frame, it is your responsibility to contact us to obtain the tracking number. When the Goods are collected / dropped off to the carrier by us, it is solely your responsibility to monitor the shipment and coordinate and cooperate with the carrier to ensure the successful delivery of the Goods. If the Goods are not delivered due to no fault of ours, and subsequently returned to us, you are responsible for all costs associated with reshipping the Goods.
13. Security Interest
13.1 You acknowledge and agree that:
(a) We hold a general lien over any Goods owned by us that are in your possession, for the satisfactory performance of your obligations under this Agreement; and
(b) these Terms and your obligations under these Terms create a registrable security interest in the Goods in favour of us under the Personal Property Securities Act 2009 (Cth) (PPSA) and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).:
13.2 Nothing in this clause 13 is intended as an agreement to subordinate a security interest arising under these Terms and conditions in favour of any person under section 61 of the PPSA.
14.1 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party), if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
14.2 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Goods and Services;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Goods and Services provided prior to termination, including Goods and Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(d) by us pursuant to clause 14.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination;
(e) you agree to grant us such rights of access to any premises where the Goods are to allow us (or our Personnel) to recover or repossess any Goods belonging to us; and
(f) subject to clause 16, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control.
14.3 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.
14.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
Despite anything to the contrary, but subject to your Consumer Law Rights, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) our maximum aggregate liability for any Liability arising from or in connection with the Goods and Services and these Terms will be limited to repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods and Services, to which the Liability relates;
(c) a Party’s liability for any Liability under, arising from, or in connection with, these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (including a failure to take reasonable steps to mitigate the relevant Liability); and
(d) we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by any loss or damage which is the inevitable and unavoidable part of performing the Goods and Services.
16. Intellectual Property
16.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
16.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you agree to do all things necessary or desirable to assure our title in such rights.
16.3 This clause 16 will survive the termination or expiry of these Terms.
17.1 Subject to clause 17.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, all of the other Party’s Confidential Information.
17.2 Clause 17.1 does not apply to Confidential Information that:
(a) is required to be disclosed in order for a Party to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by law or by a regulatory authority, including under subpoena.
18. Duties and taxes
18.1 If Taxes are payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to those Taxes payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of those Taxes. The recipient is not required to pay any GST until the supplier issues an invoice for the supply.
18.2 The terms “consideration”, “GST”, “recipient”, “supplier”, “supply” and “taxable supply” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
18.3 All import duties, carrier fees and Taxes (including any fees, duties and/or taxes charged by third parties) are the customer's responsibility. These costs vary from country to country and are imposed by the customer's government. There are numerous countries which have free trade agreements to subsidize or reduce duties, but we do not maintain a full list. If you need clarification on expected duties and taxes, we recommend you contact a local customs broker. If the Goods are returned to us due to your failure to pay any import duties and taxes, clause 5 will apply as if the Goods have been returned.
19.1 Governing Law and Disputes: These Terms are governed by the laws of Victoria, Australia. If any dispute or claim (including any question regarding its existence, validity or termination) arises out of or in connection with these Terms (Dispute), either Party may issue a notice to the other Party outlining the dispute or claim (Notice of Dispute). Within 14 days of a Notice of Dispute, senior representatives of the Parties must meet in good faith to resolve the Dispute by negotiation or such other means as they mutually agree. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may:
(a) where the Parties are both located in Australia, refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties; and
(b) where either Party is located outside of Australia, refer the matter to arbitration, to be administered by the Australian Centre for International Commercial Arbitration (ACICA) with such arbitration to be conducted in Melbourne, Victoria, in English and in accordance with the ACICA Arbitration Rules. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.
19.2 Order of Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between these Terms and any other agreement provided in respect of the provision of our Goods and Services, these Terms will prevail. If applicable, any preprinted terms in your purchase orders or other documents or terms referenced or linked within them, will have no effect on these Terms and are hereby rejected.
19.3 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
19.4 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties or as otherwise set out on our website. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
19.5 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Goods and Services to you, including on our website or in our promotional material.
19.6 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
19.7 Severance: If any provision (or part of it) under these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
19.8 Survival: Each clause, which by its nature survives termination, will survive the termination or expiry of these Terms.
20. Interpretation & Definitions
20.1 In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to “Goods and Services” includes “Goods and/or Services”;
(c) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(d) words like ‘including’ and ‘for example’ are not words of limitation;
(e) a reference to time is to local time in Victoria, Australia; and
(f) a reference to $ or dollars refers to the currency of the United States from time to time.
20.2 In these Terms, unless the context otherwise requires:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Commencement Date means the date these Terms are accepted in accordance clause 1.1.
Confidential Information includes information which:
(a) is disclosed to a receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to a disclosing Party business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the information is received.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Price and any other amounts due and payable by you to us under these Terms will not constitute “Consequential Loss” for the purposes of this definition.
Credit Agreement means the credit agreement entered into between the Parties for the provision of the Goods and Services.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Foreign Indirect Tax means a goods or services tax, value added tax, a consumption tax or similar taxes imposed in a jurisdiction other than Australia.
Goods and Services means the goods and services to be provided by us to you under these Terms, as expressly set out on our Site or in the Quote, as adjusted in accordance with these Terms.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party to these Terms or otherwise.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your Personnel or our Personnel in connection with these Terms or the provision of the Goods and Services, whether before or after the date of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, Specifications and services that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us and is protected by Australian and international laws.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out on the Site or in the Quote for the provision of the Goods and Services, as adjusted in accordance with these Terms, and includes any deposit set out on the Site or in the Quote.
Quote means the quote (including any online quote) or pro forma invoice to which these Terms are attached or incorporated by reference.
Specifications means any specifications for the Goods and Services, and, if applicable, as further particularised in an attachment to these Terms or the Quote.
Taxes means Foreign Indirect Taxes, tax, levy, duty, charge, deduction or withholding, however described, imposed by law or a government agency, together with any related interest, penalty or fine, including in respect of GST.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of these Terms.
For any questions and notices, please contact us at:
Advatek Lighting Pty Ltd (ABN 23 164 273 107)
Address: U1, 3 - 5 Gilda Court, Mulgrave, 3170 Victoria, Australia
Phone: INT: +613 8400 4566 AU: (03) 8400 4566