Terms and Conditions

To the fullest extent legally possible all contracts, dealings and/or arrangements made between the Customer and Aerolight are subject to the following Terms and Conditions of Trade unless otherwise agreed in writing.

1. Defintions:

In these Terms, unless the context otherwise requires:

(a) “Acknowledgement” has the meaning given to it at clause 4(c);

(b) “ACL” means Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (C’th);

(c) “Aerolight” means Furst Electrical Services Pty Ltd ACN 155 311 827 trading as Aerolight Airports;

(d) “Aerolight Group” means each of Aerolight’s subsidiaries, affiliates, associated companies and related entities;

(e) “Amount Owing” means at any time all amounts payable by the Customer to Aerolight at that time in connection with the Products whether or not due for payment under these Terms;

(f) “Contract” means:

(i.) any contract to which these Terms are expressed to form part; and

(ii.) for the supply of Products pursuant to an Order, the contract (which includes these Terms) formed for the supply of the Products to the Customer upon an Acknowledgement;

(g) “Credit Application” means an Application for Commercial Credit Account with Aerolight completed by the Customer;

(h) “Customer” means the customer specified in the Credit Application (or if the Customer did not complete a Credit Application, the person or entity placing the Order, or on whose behalf the Order is placed, with Aerolight);

(i) “Governmental Agency” means the Crown, any government, any governmental ministry or department, or any Crown, governmental, semi-governmental, statutory, parliamentary, administrative, fiscal, public, federal, state, national, municipal, local, judicial or regulatory entity, agency, instrumentality, utility, authority, court, commission, body or tribunal;

(j) “GST” has the meaning ascribed to that term by the GST Act;

(k) “GST Act” means A New Tax System (Goods and Service Tax) Act 1999 (Cth);

(l) “Imposts” means Governmental Agency imposts including but not limited to statutory charges, levies, rates, duties, and taxes (including but not limited to GST);

(m) “Order” has the meaning given to it in clause 4(c);

(n) “PPSA” means the Personal Property Securities Act 2009 (C’th);

(o) “Products” means any goods, products, services and/or materials supplied, or to be supplied, by Aerolight to the Customer under the “Aerolight” brand;

(a) “Standard Charges” means:

(i.) Aerolight’s ruling price for the applicable goods/services at the time they are supplied/undertaken or if no such ruling price is stipulated, Aerolight’s reasonable charges for such goods/services; or

(ii.) the amounts agreed in writing by Aerolight and the Customer; and

(b) “Terms” means these terms and conditions of trade as modified or amended in relation to a particular Order by a written Acknowledgement.

2. Payments:

(a) Payments are to be made to Aerolight without deduction or set-off of any kind and by the due date for payment stipulated in the relevant invoice or statement unless otherwise agreed in writing by Aerolight. If no due date for payment is stated, then payment must be made within 14 days of Aerolight’s invoice date.

(b) Aerolight may apply a payment received from the Customer to any Amount Owing (including part payment of an invoice, administration, collection and other costs) in any order.

(c) Aerolight is entitled to set-off or deduct against any Amount Owing, any amount payable by Aerolight to the Customer.

(d) Aerolight may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 2% plus GST of the payment amount where the Customer pays by credit card.

(e) The Customer must pay Aerolight interest on Aerolight’s overdue accounts at a rate of 10% per annum calculated daily.

3. Returns:

(a) This clause 3 only addresses Product which:

(i.) is damaged (prior to delivery);

(ii.) are not the ordered Products,

(iii.) is oversupplied; or

(iv.) are the subject of a warranty provided by Aerolight and are not the subject of any applicable consumer guarantees provided by the ACL to the Customer.

(b) Subject always to clause 3(a) and to the extent permissible at law (including under the ACL):

(i.) if Aerolight elects to take back Products, it must be in as new and saleable condition and upon terms agreed.

(ii.) custom made or custom processed Products, or Products acquired by Aerolight specifically for the Customer, will not be returnable; and

(iii.) the Customer must bear all costs of transporting the Products back to Aerolight’s premises or such other location notified by Aerolight where Aerolight agrees to the return of Products under this clause 3(b).

4. Placement of Orders:

(a) To the extent permissible at law (including under the ACL), if any dispute arises concerning any Order (including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of Aerolight will be conclusive evidence of what was ordered except in the case of manifest error.

(b) The Customer acknowledges that each Order by the Customer constitutes a security agreement on the terms set out in these Terms, and that Aerolight may register a financing statement (or comparable notice in any other relevant jurisdiction) on behalf of itself in respect of the security interests provided for by the Orders and these Terms.

(c) An order or an offer to purchase Product (“Order”) can be made by the Customer in writing or verbally and is accepted when:

(i.) the Customer receives an acknowledgment of the Order from Aerolight;

(ii.) Aerolight appropriates the relevant Products for delivery to the Customer; or

(iii.) Aerolight delivers the relevant Products to the Customer,

whichever first occurs (“Acknowledgement”).

(d) These Terms apply to every Order unless otherwise agreed in writing by Aerolight. Without limitation, acceptance of Products by the Customer is conclusive evidence that these Terms apply and are binding on the Customer.

(e) Aerolight may set specific terms from time to time in relation to Orders such as, without limitation, a requirement that the Customer pay a deposit, make full pre-payment in relation to an Order etc. even if Aerolight has previously agreed to extend the Customer credit.

5. Purchase Price:

(a) The provision of goods/services are made by Aerolight in accordance with its Standard Charges unless otherwise agreed in writing by Aerolight in any Acknowledgement, Contract, or otherwise.

(b) Unless expressly stipulated or otherwise agreed in writing by Aerolight, Imposts are not included in Aerolight’s Standard Charges and such Imposts shall be invoiced to, and paid by the Customer in addition to, the Standard Charges.

(c) Any discount offered by Aerolight is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms or in default in any of its dealings with Aerolight.

6. Quotations: The Customer acknowledges and agrees:

(a) formal quotations will be writing unless otherwise agreed by Aerolight;

(b) Aerolight shall not be bound by any quotation if an order is placed outside the period of the quotation’s validity noted thereon and in the absence of such period being noted, 30 days from the date of the quotation;

(c) prior to receipt of any order Aerolight may amend a quote without liability to the Customer;

(d) Aerolight shall not be bound by any quote if the Customer is in breach of these Terms or any Contract;

(e) quotations and orders placed by the Customer on such quotations are based on the information and details provided by the Customer to Aerolight. Where exact specifications of the scope, nature or extent of the work are not available to Aerolight at the time of providing a quotation, such quotations are estimates only; and

(f) Aerolight shall not be bound by any quotation if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer or that those circumstances have substantially and/or materially changed.

7. Installation not included:

(a) Installation and fitting of Product by Aerolight is not included unless otherwise specifically indicated by Aerolight in writing.

(b) To the maximum extent permitted by law:

(i.) Aerolight takes no responsibility for the installation and fitting of Product other than Product which are installed or fitted directly by Aerolight; and

(ii.) Aerolight will not be responsible or liable for any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the improper installation or fitting of Product or the use of such improperly installed or fitted Product (by the Customer or any third party), including (without limitation) direct, indirect, special or consequential loss or damage arising from claims by the Customer, third parties or otherwise, and the Customer shall indemnify and keep Aerolight fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by Aerolight arising out of or in connection in any way as a result same.

(c) The Customer must:

(i.) install, configure, maintain, and use the Aerolight Products in accordance with the Aerolight User Manuals (copies available on request) (“Manual”); and

(ii.) observe any instructions or directions provided with Product or by Aerolight from time to time.

A failure to do so, or other unreasonable use, will (to the extent permitted by law) result in the Product’s warranty being voided.

8. Product Warranty:

(a) If the Customer believes that goods which have been installed or fitted may be the subject of a warranty provided by Aerolight or do not meet any applicable consumer guarantees provided by the ACL to the Customer, the Customer should contact Aerolight before the goods are attempted to be repaired, replaced or removed for return to discuss the nature of the issue and whether it is appropriate for Aerolight to attend the premises where the goods have been installed or fitted as this may allow the goods and the issue to be better assessed by Aerolight (bearing in mind that the extent and accuracy of the assessment will be dependent on the information provided to Aerolight) before the goods are attempted to be repaired, replaced or removed. Aerolight therefore suggests that the Customer provide Aerolight with as much information as possible in relation to the goods as Aerolight will be relying on that information in assessing the goods and the issue. If there is a legal obligation on Aerolight to repair or replace the goods, then Aerolight will do so.

(b) However, the Customer acknowledges and agrees that if the Customer requests Aerolight to attend the Customer’s premises (or the premises of any third party, including the premises of a customer of the Customer) and there is no legal obligation on Aerolight to repair or replace the goods, then the Customer will upon demand pay Aerolight the costs and charges incurred by Aerolight in organising for the premises to be attended and the goods to be assessed. For instance, if the goods have been improperly installed or are used with incompatible parts or components and there is no legal obligation on Aerolight to repair or replace the goods, then the Customer will upon demand pay Aerolight the costs and charges incurred by Aerolight in organising for the premises to be attended and the goods to be assessed.

9. Delivery:

(a) To the extent permissible at law (including under the ACL), Aerolight accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things.

(b) Aerolight reserves the right to charge for any delivery. Standard delivery does not include offloading costs unless specified in the quotation.

(c) To the extent permitted by law (including under the ACL) the Customer will be deemed to have accepted delivery and liability for the Products immediately after Aerolight notifies the Customer that they are ready for collection, when they are delivered to a carrier, or when delivered to the Customer’s business premises or other nominated delivery site, whether attended or not, whichever is the earlier.

(d) A document (including without limitation a consignment note) purporting to be signed by an officer, employee or contractor of Aerolight confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.

(e) Once the Customer has been notified that Products are ready for collection, the Customer agrees to pay all costs of holding or handling Products if not collected within 10 days of such notification.

(f) Where delivery of the Products is to be made by instalments, each delivery shall be treated as a separate contract and failure, suspension or delay in any delivery or defect in the Products delivered shall not vitiate the contract as to other Products.

(g) The Customer must notify Aerolight of any claim for returns or defective Products within ten days of delivery, after which there will be deemed to be, to the extent permissible at law, unqualified acceptance.

10. Inspection and Testing:

(a) If the Customer requires that an order for Products must comply with any standards (other than those implied by law that cannot be excluded or standards that Aerolight warrant or represent in writing that the Products meet), the Customer must specify those standards at the time of placing its order.

(b) Any tests and/or certifications required by the Customer on the Products must be specified at the time of order and shall be at the Customer’s cost.

11. Supply always conditional: If Aerolight forms the view that the Customer will be unable to pay its debts to Aerolight or that the Customer is in breach of, or will likely breach, these Terms, Aerolight may without notice to the Customer, suspend and/or terminate the supply of Product without lability to the Customer.

12. Credit Line:

(a) The Customer is not entitled to a credit facility with Aerolight (including without limitation under a Credit Application) until Aerolight provides express notification in writing that Aerolight has agreed to extend credit to the Customer.

(b) Aerolight can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.

13. Variation and Cancellation: Variation or cancellation of any Order, Contract, dealing or arrangement must be on terms agreed in writing by Aerolight and terms which indemnifies Aerolight for any loss as a result of such cancellation.

14. Stock Discretion: Aerolight has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.

15. Product and Services:

(a) Aerolight may update, modify, make substitution or alter any of its Products or any component or raw material incorporated in or used in forming any part of any Products as part of its ongoing business. The Customer agrees to accept current Products in substitution of any Products ordered provided they are not materially different.

(b) To the extent permissible at law (including under the ACL), Aerolight disclaims any responsibility or liability relating to any Products utilised, stored, or handled incorrectly or inappropriately by the Customer or a third party.

(c) The Customer must not alter, modify or use Products in contravention of Aerolight’s instructions, manufacturer guidelines, law, or common or accepted industry practice.

16. Intellectual Property:

(a) If Aerolight utilises any design, patent, and/or other intellectual property of, or directed by, the Customer, or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Aerolight against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of that design, patent, or intellectual property or otherwise.

(b) The Customer must not advertise, use, or represent any intellectual property of Aerolight in any way without the prior written consent of Aerolight.

(c) The Customer is not granted any right in Aerolight’s processes or intellectual property by virtue of such processes or intellectual property being incorporated into a Customer’s product or property.

17. Default and Recovery Costs:

(a) To the extent permissible at law (including under the ACL), default or breach by the Customer of these Terms, a Contract or in any dealings with Aerolight will entitle Aerolight to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms, a Contract or at law.

(b) The Customer will pay (on a full indemnity basis) all costs and expenses of Aerolight, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms, a Contract or a breach of any dealings with Aerolight. 18. Indemnity: To the extent permissible at law (including under the ACL), the Customer indemnifies Aerolight, and agrees to keep Aerolight indemnified (including legal costs on a full indemnity basis) against:

(a) any claim or loss arising from or related in any way to any contract or dealing between Aerolight and the Customer or anything arising therefrom, or arising as a result of, or subsequent to, any breach of these Terms or any Contract by the Customer; and/or

(b) any act or omission of the Customer including, but not limited to, negligence of the Customer or any unauthorised representation made or warranty given by the Customer in connection with the Products.

19. Force Majeure:

(a) Aerolight will be released from its obligations under these Terms and any Contract to the extent that performance of its obligations to the Customer (whether for the provision of Products or otherwise) is delayed, hindered or prevented due to any event or circumstance beyond the reasonable control of Aerolight and whether foreseeable or not including, without limitation, weather, shipping delays, industrial action or industrial disturbances, breakdowns, accidents, fire, flood, war, pandemics, embargoes, riots, or governmental or administrative decisions.

(b) Aerolight will not be obliged to place the Customer’s interests before Aerolight’s commercial interests.

20. General Customer Obligations: The Customer must:

(a) make sure that the Products are installed to the highest possible quality of installation standards and meet the requirements and specifications of any applicable standards set forth by the relevant authorities (including but not limited to the Civil Aviation Safety Authority) in the territory/municipality; and

(b) at all times maintain and keep current in respect of the installation, and sale of the Products, public liability insurance by a reputable insurer to the level required to maintain adequate cover for works done.

21. Insolvency: If the Customer commits or is involved in any act of insolvency as determined by Aerolight, it will be deemed in default under these Terms and all Contracts. An act of insolvency includes without limitation, bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms or any Contract.

22. Privacy disclosure and consent: The Customer irrevocably authorises Aerolight to:

(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any an application for commercial credit with Aerolight completed by it and provided to Aerolight and from any other credit provider or credit reporting agency for the purpose of assessing its application, or in connection with any guarantee given by the Customer;

(b) use, disclose or exchange with other credit providers and other members of the Aerolight Group information about the Customer’s credit arrangements in order to assess its application for credit, monitor credit worthiness and collect overdue accounts; and

(c) disclose the contents of any credit report on the Customer to any related entities of Aerolight, and any of their solicitors, professional advisors or mercantile agents.

23. Terms only apply to Aerolight Product:

The Customer agrees that:

(a) these Terms will apply to all dealings between the Customer and a Aerolight with respect to Group; and

(b) these Terms will be deemed incorporated into all Contracts with that member of the Aerolight Group on the basis that a reference in these Terms to Aerolight shall be deemed to be a reference to that Aerolight Group member,

unless expressly agreed in writing otherwise by that member of the Aerolight Group.

24. Recalls: In the event of a product recall the Customer must promptly give Aerolight such assistance as Aerolight reasonably requires in relation to that recall.

25. Exclusions:

(a) To the extent permissible at law (including under the ACL) or as otherwise provided under any Contract:

(i.) no dealing with the Customer will be deemed to be a sale by sample or description; and

(ii.) if Aerolight publishes material about its Products and prices, any part which is incompatible with these Terms or a Contract is expressly excluded.

(b) The Customer agrees that if it is aware (or should be aware) that the Products which are the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will noticeably specify in writing that purpose or those characteristics in any such Order.

(c) To the extent permitted by law:

(i.) the Customer agrees that it has made its own enquiries in relation to the suitability of the Products and does not rely on representations by Aerolight in relation to their suitability for a particular purpose or any steps which may need to be taken in relation to their use and any advice; and

(ii.) any assistance given by or on behalf of Aerolight shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer.

26. Risk and Title in Products:

(a) Immediately upon delivery, the Customer accepts risk and liability for the Products.

(b) Property in, and title to, each unit of the Products supplied shall not pass to the Customer until payment has been received by Aerolight in full.

27. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts:

(a) Nothing in these Terms or any Contract is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth), ACL, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

(b) If the Customer is a consumer for the purposes of the ACL, nothing in these Terms or any Contract limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.

28. Limitation of Liability:

(a) To the maximum extent permitted by law and subject to the following provisions of this clause 28, Aerolight shall not be under any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the goods or from any services provided, including (without limitation) direct, indirect, special or consequential loss or damage of any kind arising from claims by the Customer, third parties or otherwise.

(b) If rights are conferred upon the Customer or obligations are imposed upon Aerolight by the ACL or other law which cannot be excluded, the provisions of this clause 28 shall be read subject to those rights or obligations, and to the maximum extent permitted by such legislation Aerolight hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.

(c) Subject to the preceding paragraph of this clause 28, the Customer agrees that the liability of Aerolight (which cannot be limited beyond the following provisions) is limited to:

(i.) in the case of the supply of goods, any one or more of the following (at Aerolight’s option):

A. the replacement of the goods or the supply of equivalent goods;

B. the repair of the goods;

C. the payment of the costs of replacing the goods or of acquiring equivalent goods; or

D. the payment of the costs of having the goods repaired; or

(ii.) in the case of the supply of services, any one or more of the following (at Aerolight’s option):

A. the supply of the services again; or

B. the payment of the costs of having the services supplied again.

(d) Without reducing the effect of, and subject always to, the preceding provisions of this clause 28, in no event will Aerolight be responsible for alterations made to, or the removal, re-installation or re-fitment of, goods or services by or on behalf of the Customer, and the Aerolight’s total aggregate liability (if any) to a Customer for any particular order for the supply of goods or services by Aerolight to the Customer will not, in any event, exceed the amount invoiced by Aerolight to the Customer for the said order.

(e) Except as expressly provided to the contrary in the Contract, and subject always to the preceding provisions of this clause 28, all representations, warranties, guarantees and implied terms or conditions in relation to the Products (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.

(f) Aerolight’s goods come with guarantees that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

29. Adverse Environments: The Customer acknowledges that Products can be adversely affected by severe environments, temperature extremes, frost, wind borne salt or abrasives which cause flaking, eat-away finish and reduce expected operating life especially in seaside locations.

30. Clerical Errors: To the extent permitted by law, any errors and/or omissions in Aerolight’s documents (including but not limited to price lists, catalogues, quotations, delivery dockets, invoices, statements and credit notes) will not be binding on Aerolight and may be corrected by Aerolight without liability to the Customer.

31. Variation of Terms: Aerolight reserves the right to replace or vary these Terms (or any part of them) from time to time upon 30 day’s notice. All contracts from Orders received by Aerolight after the expiry of that 30 day’s notice shall be deemed to be subject to the replacement or varied terms.

32. Entire Agreement

(a) The Contract for the supply of Products pursuant to an Order constitutes the entire agreement between Aerolight and the Customer with respect to that Order. All prior negotiations, proposals, previous dealings, correspondence, trade custom and/or trade usage are superseded by and will not affect the interpretation of that Contract.

(b) Any terms and/or conditions sought to be imposed by the Customer upon Aerolight (including but not limited to the Customer’s purchase order) will not apply unless expressly agreed in writing by Aerolight as overriding or replacing these Terms.

33. General:

(a) Notices: Any notice under these Terms or any Contract must be in writing, and may be delivered, faxed or posted to a party at their address or facsimile number last notified by them to the other party. A party may change its address or number for notices by notifying the other party.

(b) Waiver: If Aerolight elects not to exercise any rights arising as a result of breach of these Terms or a Contract, it will not constitute a waiver of any rights relating to any subsequent or other breach.

(c) No Merger: Termination of these Terms, a Contract and/or dealings between the Customer and Aerolight will not end those provisions of these Terms that are capable of surviving termination.

(d) Severability: If a provision of these Terms or a Contract would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms and Contract.

(e) Assignment: The Customer may not assign its rights and/or obligations under these Terms or any Contract without Aerolight’s prior written consent, which may be given or withheld in Aerolight’s sole and unfettered discretion. Aerolight may assign its rights and/or obligations under these Terms and/or any Contract by notice in writing to the Customer.

(f) Essence: Time shall be of the essence with respect to the performance of the Customer’s obligations under these Terms.

(g) Trusts: The Customer agrees that these Terms and all Contracts bind it not only in its own capacity, but also as the Trustee of every trust of which it is a trustee.

(h) Set-Off: Aerolight will be entitled to set off against any money owing to the Customer amounts owed to Aerolight by the Customer on any account whatsoever. However, the Customer may not set off any amounts owing by Aerolight to it against any amount due by it to Aerolight.

(i) Jurisdiction: All contracts made with Aerolight will be deemed to be made in the State of Victoria and the parties submit to the non-exclusive jurisdiction of the appropriate Courts in or nearest Melbourne in that State.