Terms of Trade
1. Definitions
1.1 “BL” means Joshua Peter Bilyj T/A Bubbles Lighting, its successors and assigns or any person acting on behalf of and with the authority of Joshua Peter Bilyj T/A Bubbles Lighting.
1.2 “Customer” means the person/s buying the Goods (and/or hiring Equipment, and/or having equipment serviced) as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by BL to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by BL to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by BL to the Customer.
1.5 “Price” means the Price payable for the Goods/Equipment hire as agreed between BL and the Customer in accordance with clause 4 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods/Equipment.
2.2 These terms and conditions may only be amended with BL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and BL.
3. Change in Control
3.1 The Customer shall give BL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by BL as a result of the Customer’s failure to comply with this clause.
4. Payment
4.1 At BL sole discretion the Price shall be either: (a) as indicated on any invoice provided by BL to the Customer; or (b) BL’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 BL reserves the right to change the Price if a variation to BL’s quotation is requested. Any variation from the specifications (including, but not limited to, any variation as a result of delays in shipping from BL’s suppliers or as a result of increases to BL in the cost of materials and labour) will be charged for on the basis of BL’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At BL’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by BL, which may be: (a) on delivery of the Goods/Equipment; (b) before delivery of the Goods/Equipment; (c) by way of instalments/progress payments in accordance with BL’s payment schedule; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by BL.
4.5 BL accepts the following payment methods
• Band Transfer
• Cash
• Credit/Debit Card – customer to pay surcharge as charged by our payment processor(s)
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to BL an amount equal to any GST BL must pay for any supply by BL under this or any other agreement for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
5. Delivery of Goods/Equipment
5.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at BL’s address; or (b) BL (or BL’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At BL’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Goods/Equipment as arranged then BL shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
5.4 BL may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by BL to the Customer is an estimate only. The Customer must still accept delivery of the Goods/Equipment even if late and BL will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6. Freight & Handling
6.1 Unless specified by the Customer, deliveries will be made by a carrier nominated by BL, provided however that BL shall not be liable for any delay, negligence or other act or omission of the carrier.
6.2 BL shall have the right to invoice for any additional freight charges incurred for express freight at the request of the Customer and/or the delivery address different from the one supplied at time of sale in accordance with clause 4.2.
6.3 When BL receives goods from the Customer for repair/return or any other reason, BL will return any such equipment using packaging materials supplied by the customer and accepts no responsibility for the suitability of these materials. Any additional packaging supplied by BL will be charged to the customer.
7. Access
7.1 The Customer shall ensure that BL has clear and free access to the work site at all times to enable them to undertake the works. BL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BL.
8. Underground Locations
8.1 Prior to BL commencing any work the Customer must advise BL of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst BL will take all care to avoid damage to any underground services the Customer agrees to indemnify BL in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, BL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BL is sufficient evidence of BL’s rights to receive the insurance proceeds without the need for any person dealing with BL to make further enquiries.
9.3 If the Customer requests BL to leave Goods outside BL’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
9.4 Where BL is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and BL shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
9.5 During the process of repairs, installation or maintenance performed by BL, all or part of the customer’s stored data may be lost. It is the customer’s responsibility to ensure all data is saved elsewhere prior to works being carried out.
10. Title To Goods
10.1 BL and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid BL all amounts owing to BL; and (b) the Customer has met all of its other obligations to BL.
10.2 Receipt by BL 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.
10.3 It is further agreed that: (a) until ownership of the Goods passes to the Customer in accordance with clause 10.1 that the Customer is only a bailee of the Goods and must return the Goods to BL on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for BL and must pay to BL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for BL and must pay or deliver the proceeds to BL on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of BL and must sell, dispose of or return the resulting product to BL as it so directs. (e) the Customer irrevocably authorises BL to enter any premises where BL believes the Goods are kept and recover possession of the Goods. (f) BL may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Customer 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 BL. (h) BL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11. Security and Charge
11.1 In consideration of BL agreeing to supply the Goods/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies BL from and against all BL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BL’s rights under this clause.
11.3 The Customer irrevocably appoints BL and each director of BL as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Customer must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify BL in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description, quote, sample or demonstration model. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow BL to inspect the Goods/Equipment.
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 BL 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 NonExcluded Guarantees, BL makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. BL’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, BL’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If BL is required to replace the Goods under this clause or the CCA, but is unable to do so, BL may refund any money the Customer has paid for the Goods.
12.7 If the Customer is not a consumer within the meaning of the CCA, BL’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 Customer by BL at BL’s sole discretion; (b) limited to any warranty to which BL is entitled, if BL did not manufacture the Goods; (c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 12.1; and (b) BL has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’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, BL 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 Customer failing to properly maintain or store any Goods/Equipment; (b) the Customer using the Goods/Equipment for any purpose other than that for which they were designed; (c) the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by BL; (e) fair wear and tear, any accident, or act of God.
12.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by BL as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that BL has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.
12.11 BL may in its absolute discretion accept non-defective Goods for return in which case BL may require the Customer to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
12.12 Notwithstanding anything contained in this clause if BL is required by a law to accept a return then BL will only accept a return on the conditions imposed by that law.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of ten percent (10%) per calendar year (and at BL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes BL any money the Customer shall indemnify BL from and against all costs and disbursements incurred by BL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BL’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies BL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BL may suspend or terminate the supply of Goods/Equipment to the Customer. BL will not be liable to the Customer for any loss or damage the Customer suffers because BL has exercised its rights under this clause.
13.4 Without prejudice to BL’s other remedies at law BL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BL shall, whether or not due for payment, become immediately payable if: (a) any money payable to BL becomes overdue, or in BL’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. Cancellation
14.1 BL may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Customer. On giving such notice BL shall repay to the Customer any money paid by the Customer for the Goods/Equipment. BL shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of the Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by BL as a direct result of the cancellation (including, but not limited to, any loss of profits).
15. Unpaid Seller’s Rights
15.1 Where the Customer has left any item with BL for repair, modification, exchange or for BL to perform any other service in relation to the item and BL has not received or been tendered the whole of any moneys owing to it by the Customer, BL shall have, until all moneys owing to BL are paid and/or if not collected within 90 days: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of BL shall continue despite the commencement of proceedings, or judgment for any moneys owing to BL having been obtained against the Customer. The Customer releases BL from any liability arising out of or connected with such disposal whether by negligence or otherwise.
16. Equipment Hire
16.1 Equipment shall at all times remain the property of BL and is returnable on demand by BL. In the event that Equipment is not returned to BL in the condition in which it was delivered BL retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all BL shall have right to charge the Customer the full retail cost of replacing the Equipment.
16.2 The Customer shall; (a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment. (b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment. (c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by BL to the Customer.
16.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, BL’s interest in the Equipment and agrees to indemnify BL against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
17. General
17.1 The failure by BL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BL’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BL has its principal place of business, and are subject to the jurisdiction of the courts in that state.
17.3 Subject to clause 12 BL shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by BL of these terms and conditions (alternatively BL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
17.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BL nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 BL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.6 The Customer agrees that BL may amend these terms and conditions at any time. If BL makes a change to these terms and conditions, then that change will take effect from the date on which BL notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for BL to provide Goods/Equipment to the Customer.
17.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.