McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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© Copyright – EC Credit Control Pty Ltd - 2010
(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
McCall Fox Family Trust T/A Koda Lighting – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2010
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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. Title
7.1 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 for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Koda Lighting in respect of all contracts between
Koda Lighting and the Client.
7.2 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 and until then Koda Lighting’s ownership or rights in
respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Koda Lighting shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Koda Lighting to the Client Koda Lighting may give
notice in writing to the Client to return the Goods or any of them to Koda Lighting. Upon such notice the rights
of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Koda Lighting shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Koda Lighting then Koda Lighting or Koda Lighting’s agent may (as the
invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any
premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Koda Lighting has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to Koda Lighting for the Goods, on trust for Koda Lighting; and
(f) the Client shall not deal with the money of Koda Lighting in any way which may be adverse to Koda Lighting;
and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of Koda Lighting; and
(h) Koda Lighting can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that Koda Lighting will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within forty eight (48) hours of delivery (time being of the
essence) notify Koda Lighting of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford Koda Lighting an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
Koda Lighting has agreed in writing that the Client is entitled to reject, Koda Lighting’s liability is limited to either (at
Koda Lighting’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired
Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the
relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund
of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Koda Lighting has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
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(d) Koda Lighting will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Koda Lighting may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of
up to forty percent of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
9.4 Any labour costs associated with the purchase of the Goods are non-refundable.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Koda Lighting warrants that if any defect in any
workmanship of Koda Lighting becomes apparent and is reported to Koda Lighting within the warranty period,
which shall be twelve months from the date of delivery (time being of the essence) unless otherwise stated by Koda
Lighting in writing, then Koda Lighting will either (at Koda Lighting’s sole discretion) replace or remedy the
workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Koda Lighting; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Koda Lighting shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without Koda Lighting’s consent.
(c) in respect of all claims Koda Lighting shall not be liable to compensate the Client for any delay in either
replacing or remedying the workmanship or in properly assessing the Client’s claim.
11. Intellectual Property
11.1 Where Koda Lighting has designed, drawn or written Goods for the Client, then the copyright in those designs and
drawings and documents shall remain vested in Koda Lighting, and shall only be used by the Client at Koda
Lighting’s discretion.
11.2 The Client warrants that all designs or instructions 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.
11.3 The Client agrees that Koda Lighting may utilise images of Goods designed, created or drawn by Koda Lighting for
the purposes of advertising, marketing, or entry into any competition.
12. Default and Consequences of Default
12.1 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.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Koda Lighting.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Koda Lighting from and against
all costs and disbursements incurred by Koda Lighting in pursuing the debt including legal costs on a solicitor and
own client basis and Koda Lighting’s collection agency costs.
12.4 Without prejudice to any other remedies Koda Lighting may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Koda Lighting may suspend or terminate the supply of Goods to the
Client and any of its other obligations under the terms and conditions. Koda Lighting will not be liable to the Client
for any loss or damage the Client suffers because Koda Lighting has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 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 in the event that:
(a) any money payable to Koda Lighting becomes overdue, or in Koda Lighting’s opinion the Client will be unable to
meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Koda Lighting may have howsoever:
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(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to Koda Lighting or Koda Lighting’s nominee to secure all
amounts and other monetary obligations payable under these terms and conditions. The Client and/or the
Guarantor acknowledge and agree that Koda Lighting (or Koda Lighting’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Koda Lighting elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify Koda Lighting from and against all Koda Lighting’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Koda Lighting or
Koda Lighting’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 Koda Lighting may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice Koda Lighting
shall repay to the Client any sums paid in respect of the Price. Koda Lighting shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Koda
Lighting (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Koda Lighting to obtain from a credit
reporting agency a credit report containing personal credit information about the Client in relation to credit provided
by Koda Lighting.
15.2 The Client agrees that Koda Lighting may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
15.3 The Client consents to Koda Lighting being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Koda Lighting for the
following purposes (and for other purposes as shall be agreed between the Client and Koda Lighting or required by
law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Koda Lighting, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
15.5 Koda Lighting may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Koda Lighting is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of Koda Lighting, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
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(h) that credit provided to the Client by Koda Lighting has been paid or otherwise discharged.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At Koda Lighting’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 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 New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Koda Lighting shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Koda Lighting of these terms and
conditions.
17.4 In the event of any breach of this contract by Koda Lighting the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 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.
17.6 Koda Lighting may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Koda Lighting may review these terms and conditions at any time. If, following any such
review, there is to be any change to these terms and conditions, then that change will take effect from the date on
which Koda Lighting notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Koda Lighting to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect Koda Lighting’s right to subsequently enforce that provision.
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1. Definitions
1.1 “Koda Lighting” shall mean McCall Fox Family Trust T/A Koda Lighting, its successors and assigns or any person
acting on behalf of and with the authority of McCall Fox Family Trust T/A Koda Lighting.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by Koda Lighting to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor
basis.
1.4 “Goods” shall mean all Goods supplied by Koda Lighting to the Client (and where the context so permits shall
include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by Koda Lighting to the Client.
1.5 “Services” shall mean all Services supplied by Koda Lighting to the Client and includes any advice or
recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Koda Lighting and the Client in accordance
with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA
or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where
applicable.
3. Acceptance
3.1 Any instructions received by Koda Lighting from the Client for the supply of Goods and/or the Client’s acceptance
of Goods supplied by Koda Lighting shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Koda Lighting.
3.4 The Client shall give Koda Lighting not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including
but not limited to, changes in the Client’s address, facsimile number, 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.
3.5 Goods are supplied by Koda Lighting only on the terms and conditions of trade herein to the exclusion of anything
to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport
to override these terms and conditions of trade.
4. Price and Payment
4.1 At Koda Lighting’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Koda Lighting to the Client in respect of Goods supplied; or
(b) Koda Lighting’s current price 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 4.2) which shall be binding upon Koda Lighting provided that the
Client shall accept Koda Lighting’s quotation in writing within thirty (30) days.
4.2 Koda Lighting reserves the right to change the Price in the event of a variation to Koda Lighting’s quotation. The
Client acknowledges that Koda Lighting’s costs may increase as a consequence of variations in foreign currency
rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation
from Koda Lighting’s quoted Price will be detailed in writing 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 Koda Lighting’s sole discretion a non refundable deposit may be required.
4.4 At Koda Lighting’s sole discretion payment shall be due before delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three
percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Koda
Lighting.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly
included in the Price.
5. Delivery of Goods
5.1 At Koda Lighting’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Koda Lighting’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are
delivered by Koda Lighting or Koda Lighting’s nominated carrier).
5.2 At Koda Lighting’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Client’s account.
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5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Koda Lighting shall be
entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
5.5 Koda Lighting may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.6 The failure of Koda Lighting to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Koda Lighting shall not be liable for any loss or damage whatsoever due to failure by Koda Lighting to deliver the
Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Koda Lighting.
5.8 At Koda Lighting’s sole discretion, a storage fee may be charged for any Goods that have not been collected by the
Client within fourteen (14) days of the Client being notified that the Goods are available for delivery.
6. Risk
6.1 If Koda Lighting retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 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