1. Definitions
    1. “Eltech” means Eltech Australia Pty Ltd.
    2. “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
    3. “Goods” means all Goods or Services supplied by Eltech to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    4. “Price” means the Price payable for the Goods as agreed between Eltech and the Client in accordance with clause 4 below.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
    2. These terms and conditions may only be amended with Eltech’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Eltech.
    3. None of Eltech’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Eltech in writing nor is Eltech bound by any such unauthorised statements.
  3. Change in Control
    1. 3.1 The Client shall give Eltech not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Eltech as a result of the Client’s failure to comply with this clause.
  4. Price and Payment
    1. At Eltech’s sole discretion the Price shall be either:
      1. as indicated on any invoice provided by Eltech to the Client; or
      2. the Price as at the date of delivery of the Goods according to Eltech’s current price list; or
      3. Eltech’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. Eltech reserves the right to change the Price if a variation to Eltech’s quotation is requested. The Client acknowledges and agrees that Eltech’s cost for overseas transactions may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced components or as a result of fluctuations in the dollar value of metal prices that result in increases to Eltech in the cost of raw materials. Any variation from Eltech’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.
    3. At Eltech’s sole discretion a non-refundable deposit may be required.
    4. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Eltech, which may be:
      1. on delivery of the Goods;
      2. by way of instalments/progress payments in accordance with Eltech’s payment schedule;
      3. thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      4. the date specified on any invoice or other form as being the date for payment; or
      5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Eltech.
    5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to one percent (1%) of the Price), or by any other method as agreed to between the Client and Eltech.
    6. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Eltech an amount equal to any GST Eltech must pay for any supply by Eltech under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  5. Delivery of Goods
    1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      1. the Client or the Client’s nominated carrier takes possession of the Goods at Eltech’s address; or
      2. Eltech (or Eltech’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
    2. At Eltech’s sole discretion the cost of delivery is in addition to the Price.
  6. Risk
    1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Eltech is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Eltech is sufficient evidence of Eltech’s rights to receive the insurance proceeds without the need for any person dealing with Eltech to make further enquiries.
    3. If the Client requests Eltech to leave Goods outside Eltech’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
  7. 7-Year Warranty Conditions
    1. Warranty is only valid for applicable products purchased and installed by an electrician with a current Australian Electrical licence and installed according to the manufacturer’s instructions.
    2. Product has not been modified in any way.
    3. Eltech does not accept liability for any direct or consequential damage, loss or other expense associated with Eltech’s products. Eltech at their discretion may contribute towards expenses associated to a Eltech product failure.
    4. Warranty will be only given on proof of purchase date.
    5. Goods must be returned to Eltech in view of Eltech assessing for product faults.
    6. The Client agrees that it does not rely on the skill or judgement of Eltech in relation to the suitability of any Goods for a particular purpose or application for which the goods are required by the Client and Eltech is under no liability whatsoever if such Goods are not suitable and fit for purpose.
  8. Client’s Disclaimer
    1. The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
  9. Title
    1. Eltech and the Client agree that ownership of the Goods shall not pass until:
      a. the Client has paid Eltech all amounts owing to Eltech; and
      b. the Client has met all of its other obligations to Eltech.
    2. Receipt by Eltech 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.
    3. It is further agreed that:
      1. until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Goods and must return the Goods to Eltech on request.
      2. the Client holds the benefit of the Client’s insurance of the Goods on trust for Eltech and must pay to Eltech the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      3. the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and f or market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Eltech and must pay or deliver the proceeds to Eltech on demand.
      4. the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Eltech and must sell, dispose of or return the resulting product to Eltech as it so directs.
      5. the Client irrevocably authorises Eltech to enter any premises where Eltech believes the Goods are kept and recover possession of the Goods.
      6. Eltech may recover possession of any Goods in transit whether or not delivery has occurred.
      7. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Eltech.
      8. Eltech may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
  10. Personal Property Securities Act 2009 (“PPSA”)
    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Eltech to the Client
    3. The Client undertakes to:
      1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which Eltech may reasonably require to;
        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        2. register any other document required to be registered by the PPSA; or
        3. (correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
      2. indemnify, and upon demand reimburse, Eltech for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      3. not register a financing change statement in respect of a security interest without the prior written consent of Eltech;
      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Eltech;
      5. immediately advise Eltech of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    4. Eltech and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. Unless otherwise agreed to in writing by Eltech, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    8. The Client must unconditionally ratify any actions taken by Eltech under clauses 9.3 to 9.5.
    9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  11. Security and Charge
    1. In consideration of Eltech agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies Eltech from and against all Eltech’s costs and disbursement s including legal costs on a solicitor and own client basis incurred in exercising Eltech’s rights under this clause.
    3. The Client irrevocably appoints Eltech and each director of Eltech as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
  12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    1. The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Eltech in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Eltech to inspect the Goods.
    2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    3. Eltech acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Eltech makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Eltech’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    5. If the Client is a consumer within the meaning of the CCA, Eltech’s liability is limited to the extent permitted by section 64A of Schedule 2.
    6. If Eltech is required to replace the Goods under this clause or the CCA, but is unable to do so, Eltech may refund any money the Client has paid for the Goods.
    7. If the Client is not a consumer within the meaning of the CCA, Eltech’s liability for any defect or damage in the Goods is:
      1. limited to the value of any express warranty or warranty card provided to the Client by Eltech at Eltech’s sole discretion;
      2. limited to any warranty to which Eltech is entitled, if Eltech did not manufacture the Goods; (c) otherwise negated absolutely.
    8. Goods must be accompanied by a GOODS RETURN FORM, which is included in this catalogue.
    9. Subject to this clause 11, returns will only be accepted provided that:
      1. the Client has complied with the provisions of clause 11.1; and
      2. Eltech has agreed that the Goods are defective; and
      3. the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      4. the Goods are returned in as close a condition to that in which they were delivered as is possible.
    10. Any repairs, alterations or other services carried out in respect of the Goods by a person other than an authorised representative of Eltech shall invalidate the warranty.
    11. If the Client requests or insists that the warranty service shall be carried out on site, at the Clients premises then any costs over and above the direct costs of replacing or repairing of the Goods or the component parts of the Goods, shall be at the Client’s expense.
    12. Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, Eltech shall not be liable f or any defect or damage which may be caused or partly caused by or arise as a result of:
      1. the Client failing to properly maintain or store any Goods;
      2. the Client using the Goods for any purpose other than that for which they were designed;
      3. the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      4. the Client failing to follow any instructions or guidelines provided by Eltech;
      5. fair wear and tear, any accident, or act of God.
    13. Eltech will charge a 15% fee for the return of non-defective Goods and a 25% fee for the return of pre-cut cables, plus any freight costs.
    14. Notwithstanding anything contained in this clause if Eltech is required by a law to accept a return then Eltech will only accept a return on the conditions imposed by that law.
  13. Intellectual Property
    1. Where Eltech has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Eltech.
    2. The Client warrants that all designs, specifications or instructions given to Eltech will not cause Eltech to infringe any patent, registered design or trademark in the execution of the Client’s Order and the Client agrees to indemnify Eltech against any action taken by a third party against Eltech in respect of any such infringement.
    3. The Client agrees that Eltech may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Eltech has created for the Client.
  14. Default and Consequences of Default
    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 Eltech’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes Eltech any money the Client shall indemnify Eltech from and against all costs and disbursements incurred by Eltech in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Eltech’s collection agency costs, and bank dishonour fees).
    3. Without prejudice to any other remedies Eltech may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Eltech may suspend or terminate the supply of Goods to the Client. Eltech will not be liable to the Client for any loss or damage the Client suffers because Eltech has exercised its rights under this clause.
    4. Without prejudice to Eltech’s other remedies at law Eltech shall be entitled to cancel all or any part of any Order of the Client which remains unfulfilled and all amounts owing to Eltech shall, whether or not due for payment, become immediately payable if:
      1. any money payable to Eltech becomes overdue, or in Eltech’s opinion the Client will be unable to make a payment when it falls due;
      2. 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
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  15. Compliance with Laws
    1. The Client and the Eltech shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the services.
    2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the services.
    3. The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
    4. Any performance figures given by Eltech are based upon Eltech’s experience and are figures that Eltech expects to obtain in testing. Despite any representation by a representative of Eltech’s to the contrary, Eltech will not accept any liability whatsoever for loss or damages in the event that the Client does not choose to act upon the performance figures or recommendations offer by Eltech.
  16. Cancellation
    1. Eltech may cancel any Order 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 Eltech shall repay to the Client any money paid by the Client for the Goods. Eltech shall not be liable for any loss or damage whatsoever arising from such cancellation.
    2. Cancellation by Client
      1. Subject to any contrary provision in these terms and conditions, the Client may cancel an Order or delivery of Goods by giving 14 days’ written notice to Eltech. Cancellation shall be effective on the date that is [14] days from the date the notice is received by Eltech (Date of Cancellation).
      2. The Client acknowledges and accepts that if the Client cancels any Order or the delivery of Goods the Client is required to pay to Eltech:
        1. The Price of the Goods manufactured and/or supplied at the Date of Cancellation (whether such manufacturing or supply has been carried out directly by Eltech or a contracted third-party manufacturer and/or supplier); and
        2. The cost of materials, including raw material and part-finished Goods, for which Eltech is required to pay; and
        3. Any costs and expenses incurred by Eltech arising as a result of or in connection with the cancellation of the Order.
      3. Without limiting the above, if the Client cancels an Order or delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Eltech as a result of the cancellation (including, but not limited to, any loss of profits).
  17. Privacy Act 1988
    1. The Client agrees for Eltech to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Eltech.
    2. The Client agrees that Eltech 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:
      1. to assess an application by the Client; and/or
      2. to notify other credit providers of a default by the Client; and/or
      3. 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
      4. to assess the creditworthiness of the Client.
    3. 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.
    4. The Client consents to Eltech being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    5. The Client agrees that personal credit information provided may be used and retained by Eltech for the following purposes (and for other purposes as shall be agreed between the Client and Eltech or required by law from time to time):
      1. the provision of Goods; and/or
      2. the marketing of Goods by Eltech, its agents or distributors; and/or
      3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      5. 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.
    6. Eltech may give information about the Client to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Client;
      2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
    7. The information given to the credit reporting agency may include:
      1. personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
      2. details concerning the Client’s application for credit or commercial credit and the amount requested;
      3. advice that Eltech is a current credit provider to the Client;
      4. 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;
      5. 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;
      6. information that, in the opinion of Eltech, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
      7. advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
      8. that credit provided to the Client by Eltech has been paid or otherwise discharged.
  18. Unpaid Seller’s Rights
    1. Where the Client has left any item with Eltech for repair, modification, exchange or for Eltech to perform any other service in relation to the item and Eltech has not received or been tendered the whole of any moneys owing to it by the Client, Eltech shall have, until all moneys owing to Eltech are paid:
      1. a lien on the item; and
      2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    2. The lien of Eltech shall continue despite the commencement of proceedings, or judgment for any moneys owing to Eltech having been obtained against the Client.
  19. Building and Construction Industry Security of Payment Act 2002
    1. At Eltech’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 Payment Act 2002 may apply.
    2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
  20. Limitation of Liability
    1. Notwithstanding anything else in this Agreement, and to the extent permissible by law, Eltech’s aggregate liability arising out of the performance or non-performance of its Services, whether under the law of contract, tort, statute or otherwise, shall be limited to the extent permissible by law to the Price paid to Eltech by the original Client for the item(s) giving rise to the claim.
    2. Subject to clause 11 Eltech 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 Eltech of these terms and conditions (alternatively Eltech’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    3. Eltech shall not be liable for any business interruption, loss of profit, revenue, materials, anticipated savings, data, contract, goodwill or the like (whether direct or indirect), or for any other form of incidental or consequent damage of any kind.
  21. General
    1. The failure by Eltech to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Eltech’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Eltech has its principal place of business and are subject to the jurisdiction of the Melbourne courts in Victoria.
    3. 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 Eltech nor to withhold payment of any invoice because part of that invoice is in dispute.
    4. Eltech may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    5. The Client agrees that Eltech may amend these terms and conditions at any time. If Eltech makes a change to these terms and conditions, then that change will take effect from the date on which Eltech notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Eltech to provide Goods to the Client.
    6. 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.
    7. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.