1. This Agreement and the Order Form govern the supply of the Products to the Customer named in the schedule.
2. In the interpretation of this Agreement, unless the contrary intention appears:
a. headings are for convenience only and do not affect the interpretation of this Agreement.
b. the words “include” or “including” will not limit whatever follows;
c. a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders;
d. a reference to any legislation includes a reference to any modification or re-enactment of that legislation; and
e. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
3. Each Order constitutes an offer by the Customer to Smart Lifestyle Australia to purchase the Products and is subject to acceptance by Smart Lifestyle Australia. Any Order accepted by Smart Lifestyle Australia shall constitute a binding agreement between the Customer and Smart Lifestyle Australia on the terms of this Agreement.
VARIATION OR CANCELLATION BY CUSTOMER
4. The Customer shall not vary or cancel an order without the written consent of Smart Lifestyle Australia.
5. If Smart Lifestyle Australia does elect to accept variations to the Order, the Customer shall pay for any variations to the Order at rates specified by Smart Lifestyle Australia which shall be in addition to the Price.
6. In case of any variation from the original contract, Smart Lifestyle Australia and the customer both need to sign a variation contract.
7. The Customer may, however, by written notice to Smart Lifestyle Australia, cancel an order for the Products prior to shipment:
a. under the circumstances agreed mutually; or
b. if the Products are not shipped within 6 months of the Customer placing an order.
8. If the Customer cancels an order for the Products, then subject to the Customer having complied with its obligations under this Agreement, Smart Lifestyle Australia will provide a full refund to the Customer of all amounts paid prior to cancellation.
9. Smart Lifestyle Australia may at its sole and absolute discretion, by written notice to the Customer, cancel an order and/or terminate this Agreement at any time prior to installation of the Products, and for any reason whatsoever.
10. Upon such termination, and subject to the Customer having complied with its obligations under this Agreement, Smart Lifestyle Australia will pay a full refund to the Customer of amounts paid prior to such cancellation or termination.
AVAILABILITY OF PRODUCTS
11. If Products ordered by the Customer are not available at the time of Order, they will be supplied by Smart Lifestyle Australia when available, and Smart Lifestyle Australia shall not be liable to the Customer to make good any loss or damage whether arising directly or indirectly as a result of any ensuing delay in delivery.
12. All prices charged by Smart Lifestyle Australia are subject to change with prior notice and unless otherwise specified, are exclusive of any GST. Smart Lifestyle Australia price lists or price catalogues do not constitute an offer by Smart Lifestyle Australia to supply any item set out in the price lists or price catalogues at the listed price.
13. All payments by the Customer are to be made in cash, Credit Cards, bank cheque or other cleared funds.
14. The Customer must also pay to Smart Lifestyle Australia at the same time the Price is payable GST, and all other applicable taxes, duties, levies, penalties and any other government charges payable in relation to the supply of Products or provision of Services (which have not been included in the Price) on demand by Smart Lifestyle Australia. The Customer must make all payments to Smart Lifestyle Australia required by this Agreement without set-off, deduction or counterclaim, and the customer agrees that the interest rate nominated is in the circumstances fair and reasonable.
15. The Customer acknowledges that the Delivery Date is an estimate only and should Smart Lifestyle Australia be unable to deliver the Products by the Installation Date then:
a. The Delivery date shall be extended by any amount of time deemed necessary by Smart Lifestyle Australia; and
b. Smart Lifestyle Australia may at its sole discretion cancel any Order, in which case any amounts paid to Smart Lifestyle Australia by the Customer shall be refunded
FORCE MAJEURE EVENT
16. If Smart Lifestyle Australia becomes unable, due to the occurrence of a Force Majeure Event, to carry out any obligation, in whole or in part, placed on it by this Agreement, Smart Lifestyle Australia may, in its absolute discretion either:
a. Suspend performance of that obligation, so far as it is affected by the Force Majeure Event, during the period the Force Majeure Event continues; or
b. Cancel the Customer’s Order without liability.
TITLE TO THE PRODUCTS
17. The Products remain the property of Smart Lifestyle Australia (and Smart Lifestyle Australia retains title to the Products) until the Price and any other payment or sum due to Smart Lifestyle Australia has been paid in full by the Customer, regardless of whether installed or not and regardless of the location of goods.
18. All Products shall be at the risk of the Customer from the time that delivery of the Products at the Customer’s premises has been completed.
19. The Customer must not offer, sell, assign, sublet, mortgage, pledge, encumber or otherwise deal with the Products in any way which is inconsistent with or would detract from Smart Lifestyle Australia ownership of the Products until the Price and any other payment or sum due to Smart Lifestyle Australia has been paid in full by the Customer. If requested by Smart Lifestyle Australia, the Customer must ensure the products are clearly identifiable as the property of Smart Lifestyle Australia.
20. In the event that the Customer is in default of its obligations under this Agreement, any Order or any other agreement that exists between the Customer and Smart Lifestyle Australia, Smart Lifestyle Australia will at its election be entitled to the immediate return of the Products and for this purpose may enter the Customer’s premises to recover any Products. If Smart Lifestyle Australia so elects, the Customer must at its cost take all necessary action (including obtaining the consent of any third party) to enable Smart Lifestyle Australia to exercise its rights under this clause.
DISCREPANCY OF PRODUCTS
21. Unless otherwise stated by Smart Lifestyle Australia in writing, the exact specifications, dimensions, and masses quoted in respect of any Products are approximate and subject to change without notice and subject to commercial tolerances.
22. Smart Lifestyle Australia reserves the right at its discretion to substitute any part or component of the Products with a comparable part or component of similar functionality.
23. The Customer affirms for the benefit of Smart Lifestyle Australia that any and all information provided by the Customer to Smart Lifestyle Australia in connection with any Order to purchase the Products is true and correct.
24. The Customer agrees to sign any consents or other forms required by Smart Lifestyle Australia under which it will consent, amongst other things, to Smart Lifestyle Australia obtaining credit information about the Customer or providing a credit report in relation to the Customer or exchanging credit information about the Customer to third parties.
25. The Customer acknowledges and agrees that under no circumstances will it take any interest in Smart Lifestyle Australia Intellectual Property, and Smart Lifestyle Australia reserves all of its rights in respect of its Intellectual Property.
26. Upon the occurrence of an Event of Default, Smart Lifestyle Australia may by notice in writing to the Customer:
a. elect that all monies owing by the Customer to Smart Lifestyle Australia under this Agreement, any Order or any other agreement that exists between the Customer and Smart Lifestyle Australia (including but not limited to any Credit) whatsoever become immediately due and payable in full by the Customer; and/or
b. terminate an Order, or all Orders with the Customer.
27. In respect of any terminated Order (other than an Order validly cancelled by the customer under the terms of this agreement) the Customer must pay to Smart Lifestyle Australia any and all losses, damages, costs, interest, fees, charges (including handling charges) and expenses incurred or suffered by Smart Lifestyle Australia and its suppliers as a result of the Customer’s default of this Agreement and the subsequent cancellation of the Order. The Customer shall have no recourse whatsoever against Smart Lifestyle Australia as a result of any termination of an Order by Smart Lifestyle Australia under this agreement.
28. The Customer must give Smart Lifestyle Australia full details of any Event of Default as soon as it becomes aware that an Event of Default has occurred.
29. Each of these events or circumstances is an Event of Default:
a. the Customer fails to comply with this Agreement or the terms of any contractor Order between the Customer and Smart Lifestyle Australia;
b. the Customer being an individual is declared bankrupt or becomes of unsound mind;
c. the Customer enters into any composition or arrangement with its creditors or goes into liquidation (voluntarily or otherwise) or has a receiver or liquidator or trustee or administrator or similar official appointed overall or part of its assets;
d. the Customer ceases or Smart Lifestyle Australia ceases to carry on all, or substantially all, of its business or operations;
e. an order being made, or the Customer passing a resolution, or any other step is taken, for the Customer’s winding up (including but not limited to an application being made to a court for an order for its winding up)
f. the Customer becomes or is declared or is deemed to be insolvent, or is unable or deemed to be unable to pay its debts, generally;
g. the Customer undergoes a change in its control or ownership not approved by Smart Lifestyle Australia in writing; or
h. an event or circumstance occurs in relation to the Customer which is analogous to any event or circumstance specified in paragraphs (b) to (f).
30. The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in this Agreement and there are rights and remedies conferred on the Customer in relation to the provision of goods or services which cannot be excluded, restricted or modified by agreement (Non-excludable Rights). The terms of this Agreement are subject to non-excludable rights.
31. Except to the extent of Non-Excludable Rights, Smart Lifestyle Australia will not be liable for:
a. any claim by the Customer or any other person, including without limitation, any claim relating to or arising from all clauses, conditions, guarantees and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise; and
b. any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by Smart Lifestyle Australia in writing and the liability of Smart Lifestyle Australia for any such matters is hereby excluded.
32. Where (and to the extent) permitted by law the liability of Smart Lifestyle Australia of a Non-Excludable Right can be limited, Smart Lifestyle Australia liability is limited, at Smart Lifestyle Australia selection, to one of the following:
a. replacement of the Products or supply of equivalent products;
b. repair of the Products;
c. payment of the costs of replacing the Products or acquiring equivalent products;
d. payment of the cost of having the Products repaired.
33. Notwithstanding any other provision in this Agreement, Smart Lifestyle Australia is in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or of statutory duty) or other wise to compensate the Customer for any:
a. costs or expenses;
b. loss of profit, revenue, business, contracts or anticipated savings;
c. loss or expense resulting from a claim by a third party;
d. special, indirect or consequential loss, damage or expense; or
e. death or personal injury, whatsoever and how so ever arising.
34. To the full extent permitted by law, Smart Lifestyle Australia’s liability to the Customer for all claims made by the Customer, in relation to any of this Agreement or otherwise, whether arising under contract, negligence or any other tort, under statute or otherwise, will not exceed in aggregate the amounts paid by the Customer under this Agreement.
35. This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
36. This Agreement may only be varied by written agreement between the parties.
37. The rights of Smart Lifestyle Australia are cumulative and are in addition to any other rights of that party.
38. This Agreement is governed by the laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria.
39. Any provision of this Agreement, which is unenforceable, illegal or void or partly unenforceable, illegal or void is, where possible, to be severed to the extent necessary to make this Agreement enforceable, but so as not to affect the enforceability of the remaining provisions of this Agreement.
40. No failure or partial failure by a party to enforce any of its rights under this Agreement constitutes a waiver or partial waiver of that right, and no waiver is effective unless it is in writing and signed by authorised representatives of each party.
41. The Customer shall not assign its rights, or novate its obligations, under this Agreement without the prior written consent of Smart Lifestyle Australia. Smart Lifestyle Australia may assign its rights or novate its obligations under this Agreement, without obtaining the consent of the Customer.
42. The customer gives permission for pictures to be taken before, during, and after delivery and subsequent installation. These pictures are the property of Smart Lifestyle Australia. And the pictures may be used in various marketing contents.
43. The Customer must promptly sign all documents and do all things that Smart Lifestyle Australia from time-to-time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.