Goods services T C s

Goods services T C s
IMPORTANT NOTICE TO THE CUSTOMER
You have a right to cancel this Agreement without reason by notifying us within 10 business days from and
including the day after you entered into this Agreement.
Agreement has the meaning given in clause 2.1.
Australian Consumer Law or ACL means the Australian Consumer Law set out in Schedule 2 of the Competition
and Consumer Act 2010.
Deposit means the amount specified as the deposit (which may be $0) in the Quote.
Cooling Off Period has the meaning given in clause 7.2.
Energy Matters, we or us means Energy Matters Pty Ltd ACN 118 108 044 and any of our representatives,
associates, officers, employees, agents, subcontractors or related entities.
Energy Matters Payment Plan means a payment plan offered by the Energy Matters Payment Plan Provider and
facilitated by us in relation to the purchase of the Goods and Services.
Energy Matters Payment Plan Provider means Certegy Ezi-Pay Pty Ltd (ABN 28 129 228 986).
Energy Matters ‘Save As You Go Solar’ means a payment plan offered by the Energy Matters ‘Save As You Go
Solar’ Provider and facilitated by us in relation to the purchase of the Goods and Services.
Energy Matters ‘Save As You Go Solar’ Provider means GPAC Finance Pty Limited (ACN 145 265 103) trading
as ‘Classic Clean Energy Finance’.
Installation Warranty means the warranty given by us in relation to our installation services (which can be
accessed by clicking here).
Goods means any or all of the products supplied by us or on our behalf.
Purchase Price has the meaning given in clause 3.1.
Premises the site at which the Goods are to be installed.
Privacy Policy means our privacy policy which may be accessed by clicking here.
Quote means the quote for the Goods and Services provided by us, which incorporates by reference these
Terms and Conditions.
Services means any or all of the installation services conducted by us or on our behalf.
Terms and Conditions refers to the terms and conditions set out below, and those incorporated by reference,
which apply to each Agreement for the supply of Goods and Services to you.
2.1 An agreement for the supply and purchase of Goods and Services (Agreement) will be formed on the basis of
the Quote and these Terms and Conditions upon:
(a)
you paying the Deposit for the Goods and Services; and
(b)
your acceptance of the Quote or of these Terms and Conditions.
2.2 The Agreement may only be amended in writing, signed by you and by us.
2.3 If you apply for Energy Matters Payment Plan or Energy Matters ‘Save As You Go Solar’, you acknowledge and
agree that clause 5 of these Terms and Conditions will not form part of the Agreement and that our specific
terms and conditions which apply to purchases of Goods and Services through Energy Matters Payment Plan
(which can be accessed by clicking here) or Energy Matters ‘Save As You Go Solar’ (which can be accessed by
clicking here) (as appropriate) will form part of the Agreement.
2.4 Under the Agreement, we agree to comply with the Clean Energy Council Solar PV Retailer Code of Conduct.
Energy Matters Pty Ltd 359-361 City Road, Southbank VIC 3006 T: 1300 727 151 F: +61 3 9697 1919 E: sales@energymatters.com.au
ABN: 45 118 108 044 VIC: REC 17899
Australian Credit Licence: 422611
SA: REC PGE 200959
NSW: ECL 223969C
TAS: ECL 1167162
QLD: ECL 72514
ACT: ECL 20101309
3.1 The purchase price for the Goods and Services is the price set out in the Quote (Purchase Price). Unless
otherwise expressly stated in the Quote, the Purchase Price is inclusive of GST.
3.2 The Purchase Price is dependent upon an inspection by us of your Premises, which may occur on the
scheduled installation date. However, subject to this clause 3 and clauses 7 and 8, we will not vary the
Purchase Price unless:
(a)
the information provided by you and relied on by us was incorrect or incomplete; or
(b)
you failed to provide information that we informed you was required by us within the time limits required by
us;
(b)
due to access constraints, specialist equipment is required for us to perform the Services.
3.3 If we need to vary the Purchase Price because:
(a)
the information provided by you was incorrect or incomplete; or
(b)
you failed to provide information that we informed you was required by us within the time limits required by
us,
we will advise you of the variation and you may either accept the varied Purchase Price or cancel the
Agreement. If you cancel the Agreement clause 7 will apply.
3.4 Where you fail to provide information to us that we have advised you is required by us, within the limit limits
required by us, we may in our absolute discretion arrange for an accredited installer to attend the Premises to
carry out an inspection in order to obtain the required information. If such an inspection is carried out then you
will be required to pay a separate fee of $140 for the inspection, which will be payable on the day of the
inspection.
3.5 If we determine that, due to access constraints, specialist equipment such as a cherry picker or scissor lift will
be required for us to perform the Services we will advise you of the additional costs, which we estimate to be
approximately $1,000 per day. You may either accept the additional costs or cancel the Agreement. If you
cancel the Agreement we will refund in full all amounts paid by you up to and including the date of cancellation.
4.
4.1 Electricity meter changeovers, meterboard upgrades, trenching works and electrical inspections associated with
the Goods and Services do not form part of the Agreement. These services will not be performed by us. You
will be billed separately for these services by the third parties who perform these services.
4.2 Switchboard upgrades do not form part of the Agreement. You may either arrange for a third party to perform
this service or you may ask us to perform this service for you. You will be billed separately for this service by
any third party who performs this service. When performed by us, you will be required to pay a separate fee for
this service. This fee is not included in the Purchase Price.
4.3 If the existing electrical infrastructure at the Premises, or the surfaces or structures on which the Goods are to
be installed, do not comply with all relevant legal requirements (including all relevant codes and regulations) you
may be required to repair, replace or improve, at your own expense, those parts that are non-compliant prior to
the installation of the Goods.
4.4 Your obligation to pay the Purchase Price is not affected by any delay by a third party in performing any service
or works referred to in this clause 4.
5.1 You are required to pay the Purchase Price as follows:
(a)
the amount of the Deposit (if any) on the day you commit to purchase; and
(b)
the balance (being the Purchase Price less the Deposit) in full on or before the day of installation.
5.2 Where you have elected to pay the balance of the Purchase Price using credit card you authorise us to charge
your credit card for the full amount owing for the Goods and Services including any additional costs referred to
in clause 3.5 (if applicable).
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2
5.3 Unless specified otherwise in your Quote, you will be charged a 2% surcharge in the event you pay the balance
of the Purchase Price (or any part thereof) by credit card and/or any costs referred to in clause 3.5 (if
applicable).
5.4 If you fail to pay the Purchase Price when due, or if any purported payment by you is not honoured, you must
pay on demand any costs, expenses or losses which have been, or are likely to be, incurred by us as a result,
including costs associated with the collection of any outstanding amounts (including the costs of any debt
collection agency) and any cheque dishonour fees.
5.5 If you fail to pay the Purchase Price when due you acknowledge and agree that we may (without prejudice to
any other rights or remedies that we may have):
(a)
charge interest on the overdue amount at a rate equal to the rate specified in the Penalty Interest Rates
Act 1983 (Vic) plus 2% which will be calculated on a day by day basis from the date the amount was due
until the date the overdue amount is paid in full;
(b)
lodge a default on your credit history file;
(c)
engage a debt collection agency to pursue the outstanding debt on our behalf, as well as any other costs,
expenses or losses incurred by us as a result of your failure to pay (including the costs of the debt
collection agency); and/or
(d)
commence legal proceedings in order to recover any debt owed by you and our fees and expenses in
bringing legal proceedings against you, including administration and legal fees on a solicitor/client basis.
6.1 We will endeavour to install the Goods at the Premises within 4 to 6 weeks after approval to connect the Goods
to the electricity network has been communicated to us by the third party responsible for issuing such approval.
We will advise you if for any reason we will be unable to meet this timeframe.
6.2 We will make every attempt to install the Goods in the optimum position at the Premises. The Purchase Price
includes connection of the Goods to a switchboard which is located in the building onto which the Goods are to
be installed. You or your representative must be at the Premises on the scheduled installation date to give us
clear directions for the positioning of the Goods and to resolve any issues that might arise.
6.3 If you or your representative is not at the Premises on the scheduled installation date then we may, in our
absolute discretion:
(a)
perform the Services, using our reasonable judgement and experience in determining where to position the
Goods. In such circumstances you will not have any claim against us in relation to how we have positioned
the Goods at the Premises; or
(b)
arrange with you to have the Services performed on a different date, in which case all reasonable amounts
incurred by us in preparing for the original scheduled installation date will be due and payable by you to us.
We may, in our absolute discretion, withhold these amounts from any amounts paid by you to us up to the
time of cancellation or, where you have provided your credit card details to us, charge these amounts to
your credit card and by accepting these Terms and Conditions you authorise us to do so; or
(c)
cancel the Agreement, in which case clause 7.5 will apply.
7.1 Either party may cancel the Agreement if the other party materially breaches the terms of the Agreement.
Cancellation by you
7.2 You may cancel the Agreement without reason by notifying us within 10 business days from and including the
day after you entered into the Agreement (Cooling Off Period). If you cancel the Agreement during the
Cooling Off Period we will refund in full all amounts paid by you up to and including the date of cancellation.
7.3 You may also cancel the Agreement in accordance with clause 3.3 or clause 3.5.
Cancellation by us
7.4 We may cancel the Agreement if we are of the opinion that, due to conditions at the Premises, we cannot
perform the Services safely or we cannot perform them for the Purchase Price. If we cancel the Agreement in
circumstances where we would have been able to determine the conditions at the Premises had you provided
information that we informed you was required by us within the time limits required by us, we will refund in full all
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3
amounts paid by you up to and including the date of cancellation but a $500 cancellation fee will be due and
payable by you to us, We may, in our absolute discretion, withhold the $500 cancellation fee from your refund
or, where you have provided your credit card details to us, charge this fee to your credit card and by accepting
these Terms and Conditions you authorise us to do so. This clause 7.4 will apply regardless of the fact that we
did not exercise our discretion to carry out a site inspection pursuant to clause 3.4.
7.5 We may cancel the Agreement in accordance with clause 6.3(c) if you or your representative is not at the
Premises on the scheduled installation date. If we cancel the Agreement in these circumstances all reasonable
amounts incurred by us in preparing for your installation will be due and payable by you to us. We may, in our
absolute discretion, withhold these amounts from any amounts paid by you to us up to the time of cancellation
or, where you have provided your credit card details to us, charge these amounts to your credit card and by
accepting these Terms and Conditions you authorise us to do so.
7.6 We may cancel the Agreement if, through no fault of ours, you are unable or unwilling to proceed with the
installation of the Goods for a period of more than 3 months after the date on which the Agreement was formed,
unless that period has been extended by mutual agreement. If we cancel the Agreement in these circumstances
we will refund in full all amounts paid by you up to and including the date of cancellation but a $250 cancellation
fee will be due and payable by you to us. We may, in our absolute discretion, withhold the $250 cancellation fee
from your refund or, where you have provided your credit card details to us, charge this fee to your credit card
and by accepting these Terms and Conditions you authorise us to do so.
Consequences of cancellation
7.7 If you cancel the Agreement in circumstances other than those set out in clauses 3.5, 7.1 or 7.2:
(a)
if you cancel more than 5 business days before the scheduled installation date, we will refund in full all
amounts paid by you up to and including the date of cancellation but a $250 cancellation fee will be due
and payable by you to us. We may, in our absolute discretion, withhold the $250 cancellation fee from your
refund or, where you have provided your credit card details to us, charge this fee to your credit card and by
accepting these Terms and Conditions you authorise us to do so; or
(b)
if you cancel 5 business days or less before the scheduled installation date, subject to sub-clause (c), we
will refund in full all amounts paid by you up to and including the date of cancellation but a $500
cancellation fee will be due and payable by you to us. We may, in our absolute discretion, withhold the
$500 cancellation fee from your refund or, where you have provided your credit card details to us, charge
this fee to your credit card and by accepting these Terms and Conditions you authorise us to do so; or
(c)
if you cancel within 48 hours of your scheduled installation date all reasonable amounts incurred by us in
preparing for your installation will be due and payable by you to us. We may, in our absolute discretion,
withhold these amounts from any amounts paid by you to us up to the time of cancellation or, where you
have provided your credit card details to us, charge these amounts to your credit card and by accepting
these Terms and Conditions you authorise us to do so.
7.8 If you choose to cancel the Agreement pursuant to this clause 7, you must notify us of your decision to cancel
the Agreement before the Goods have been installed in order for the cancellation to take effect.
7.9 We will refund any amounts due to you in accordance with this clause 7 within 30 days of the date of
cancellation.
8.
FEED IN TARIFFS, GOVERNMENT REBATES AND STCS
8.1 You may be entitled to receive a feed in tariff from your electricity retailer in relation to electricity produced by
the Goods which is fed back into the electricity network. Any information provided by us regarding the
applicability of any feed in tariffs is based on our understanding of your current situation and based on the
current information that has been provided to us by electricity retailers and State governments. We strongly
recommend that you personally contact your electricity retailer for advice about the exact feed in tariffs that
might apply to your situation.
8.2 You may be entitled to receive a grant, rebate or other benefit from a government or to create Small-scale
Technology Certificates (STCs) as a result of the purchase or installation of the Goods. We do not warrant that
you will receive any grant, rebate or other benefit or be entitled to create STCs.
8.3 If the Purchase Price incorporates a point of sale discount on the basis that:
(a)
you will assign some or all of your rights to create STCs to us, the Purchase Price is conditional on you
assigning to us your rights to create those STCs;
(b)
we will receive payment of a grant, rebate or other benefit, you authorise us to apply for that grant, rebate
or other benefit in your name and to receive payment of that grant, rebate or benefit on your behalf.
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8.4 You agree to take whatever action we may reasonably require in order for the assignment referred to in clause
8.3(a) to take effect or for us to obtain payment of the grant, rebate or other benefit referred to in clause 8.3(b).
8.5 We will use our reasonable endeavours to assist you to assign to us your right to create any STCs or to apply
for and receive any grant, rebate or other benefit that you may be entitled to or eligible to create as a result of
the installation of the Goods. However if, for any reason outside our control:
(a)
you have not received the payment of any grant, rebate or benefit incorporated in the Purchase Price; or
(b)
we are not able to create the number of STCs anticipated in the Quote,
you must pay the amount of that grant, rebate or benefit or the amount equal to the value of the point of sale
discount given (or the balance which remains outstanding) to us within 7 days of us notifying you of the
additional amount being payable.
8.6 You acknowledge that a government may, at any time, make legislative changes which may affect your eligibility
for, or entitlement to, any incentives, subsidies, grants, rebates, STCs or other benefits. We will not be liable to
you in the event that such legislative changes occur and you expressly exclude us from any such liability.
8.7 You acknowledge that in certain circumstances a government may require you to repay a grant, rebate or other
benefit. Except where we have breached our obligations to you, we will have no responsibility to you in the
event that you are required by a government to repay a grant, rebate or other benefit.
9.
WARRANTIES
9.1 Warranties
Subject to clause 10:
(a)
Goods manufactured by us are subject to the warranties set out in the documentation provided or made
available to you at the time of installation;
(b)
Goods manufactured by other parties may come with a guarantee or warranty from the manufacturer. Any
such guarantees or warranties will be set out:
(c)
(i)
in the documentation provided or made available to you at the time of installation; or
(ii)
at our website available at www.energymatters.com.au;
the Services are warranted on the terms of the Installation Warranty (which can be accessed by clicking
here).
9.2 Transferability of Goods warranties
Goods warranties can only be transferred by the original purchaser of the applicable Goods where the
manufacturer of those Goods provides so under the terms of their warranty.
9.3 Transferability of the Installation Warranty
The Installation Warranty is transferable by the original purchaser of the Services to any subsequent purchaser
of the Premises at which the Services were provided.
9.4 Service calls
We will carry out service calls on the following conditions:
(a)
you must give us 48 hours’ minimum notice of any non-emergency service call after which we will arrange
a time and date for a service call;
(b)
service calls will generally be carried out during normal working hours only (9.30am – 4.00pm Monday to
Friday);
(c)
a minimum service charge of $180.00 per hour plus the cost of all parts and all travel and transport costs is
payable for all service calls. For service calls after hours, an additional service charge of not less than
$100 applies;
(d)
where we carry out a service call for a problem with the Goods and Services which is covered by a
warranty or a consumer guarantee under the ACL, you will not be charged the service charges referred to
in clause 9.4(c);
(e)
where we carry out a service call which is not covered by a warranty or a consumer guarantee under the
ACL, or where there is otherwise no problem with the Goods or Services, you will be charged the service
charges referred to in clause 9.4(c).
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10.
AUSTRALIAN CONSUMER LAW GUARANTEES AND REMEDIES
10.1
Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are
entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable
loss or damage. You are 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.
10.2
In the case of a problem with any Goods which is defined as a ‘major failure’ under the ACL or which is not
capable of being remedied, you are entitled to:
10.3
10.4
(a)
reject the Goods and get a refund;
(b)
reject the Goods and get an identical replacement or Goods of similar value if reasonably
available; or
(c)
keep the Goods and get compensation for the reduction in value of the Goods caused by the problem.
In the case of a problem with any Goods which is not defined as a ‘major failure’ under the ACL and which is
capable of being remedied, you are not entitled to reject the Goods or to ask for a refund. However, you are
entitled to have the goods repaired or replaced. In such circumstances we may, at our option, choose to:
(a)
provide a refund;
(b)
replace the Goods or to repair the Goods; or
(c)
pay you the reasonable cost of having the Goods repaired or replaced.
In the case of a problem with any Services which is defined as a ‘major failure’ under the ACL or which is not
capable of being remedied, you are entitled to:
(a)
cancel the Agreement and get a refund; or
(b)
get compensation for the difference in value of the Services delivered and what was paid for
by you.
10.5
In the case of a problem with any Services which is not defined as a ‘major failure’ under the ACL and which is
capable of being remedied, you must provide us with an opportunity to remedy the problem free of charge
within a reasonable time.
10.6
You are also entitled to compensation for any reasonably foreseeable loss or damage resulting from:
(a)
a failure by us to provide the Services as required by the Agreement;
(b)
the Goods not being in accordance with the Agreement; and/or
(c)
the Services or Goods failing to meet any consumer
guarantee under the ACL.
10.7
We will not be liable to you for any personal injury or any loss or damage of any kind that was not reasonably
foreseeable or that could not have been expected to result from the circumstances set out in clauses 10.6(a)
to (c).
11.
SUBSTITUTION POLICY
If, for any reason, we are unable to supply any items you have ordered, we reserve the right to supply a
substitute product of similar specification and value without notice.
12.
WARRANTIES AND ACKNOWLEDGEMENTS BY YOU
You:
(a)
warrant that you have read and understood the Quote and these Terms and Conditions;
(b)
warrant that all information you have provided to us is true, accurate and complete and you
acknowledge that we have relied on that information in providing the Quote and in supplying the Goods
and Services;
(c)
acknowledge that it is your responsibility to determine what approvals or permits are required from
relevant authority(s) in relation to the installation of the Goods and the performance of the Services at
the Premises;
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6
(d)
warrant that you have obtained all necessary approvals or permits from relevant authority(s) in relation
to the installation of the Goods and the performance of the Services at the Premises;
(e)
warrant that you have read and accept our Data Disclaimer (which can be accessed by clicking here);
(f)
acknowledge that the performance of the Goods may be affected by the actions of third parties, the
positioning of the Goods on the Premises and by environmental conditions (including the number of
hours of sunlight, cloud cover, weather patterns and the location of surrounding structures and flora);
(g)
acknowledge that all descriptive specifications, illustrations, drawings and data dimensions provided by
us to you, or otherwise contained in our fact sheets, price lists and other advertising material, are
approximate only;
(h)
agree that we may substitute or use alternative goods to the Goods referred to in the Quote, provided
that such goods are of equal or better quality than the Goods referred to in the Quote; and
(i)
warrant that you will be 18 years old or over prior to purchasing the Goods.
13.
RISK AND OWNERSHIP OF GOODS
13.1
Risk of loss or damage to the Goods will pass to you upon installation of the Goods at the Premises or when
you otherwise take possession of the Goods.
13.2
You remain liable to pay for the Goods notwithstanding any loss, damage or deterioration to the Goods which
occurs after risk in the Goods passes to you.
13.3
Ownership of, and title to, the Goods passes to you only upon payment in full by you or on your behalf of the
Purchase Price and any other amounts owed by you.
13.4
Until payment in full by you of the Purchase Price and any other amounts owed by you:
14.
(a)
if the Goods are in your possession, you will hold the Goods as our trustee and you must store the
Goods so that they are clearly identifiable as our property;
(b)
we may call for, and recover possession of, the Goods at any time;
(c)
you grant to us a non-exclusive licence to enter onto the Premises in order to remove the Goods;
(d)
if you do not comply with our request to remove and deliver the Goods to us, then we may remove and
recover the Goods as a licensee and without liability for trespass; and
(e)
we will not be responsible for any damage reasonably caused in the course of removing the Goods.
RIGHT OF ENTRY
You grant us a licence to enter the Premises for the purposes of:
15.
(a)
installing the Goods;
(b)
inspecting the Goods;
(c)
conducting repairs or maintenance to the Goods;
(d)
removing the Goods and any equipment; and
(e)
any other activities ancillary to, or necessary to facilitate, the above activities.
INSOLVENCY
If you become, or resolve or take any steps to be declared, insolvent or bankrupt, or have a receiver,
administrator, liquidator, trustee or similar official appointed then:
(a)
you must notify us immediately;
(b)
all amounts outstanding immediately become due and payable; and
(c)
your right to possession of any Goods which have not been paid in full by you ceases and we will be
entitled to recover possession of those Goods under clause 13.
16.
PERSONAL PROPERTY SECURITIES ACT 2009
16.1
For the purposes of this clause 15 “PPSA” means the Personal Property Securities Act 2009 (Cth) and all
regulations made under that Act. All references to “sections” in this clause 15 are to sections of that Act.
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16.2
16.3
You acknowledge and agree that:
(a)
the Agreement constitutes a security agreement for the purposes of PPSA; and
(b)
by accepting these Terms and Conditions you grant a security interest (by virtue of the retention of title
provisions of these Terms and Conditions) to us in all Goods and Services previously supplied to you
by us (if any) and all Goods and Services that will be supplied in the future to you by us during the
continuation of our relationship.
You undertake to:
(a)
sign any further documents and provide any further information (which information you warrant to be
complete, accurate and up to date in all respects) which we may reasonably require to enable
registration a financing statement or a financing change statement on the Personal Property Securities
Register established under the PPSA;
(b)
not register a financing change statement or make an amendment demand in relation to any security
interest created by the Agreement without our prior written consent;
(c)
give us at least 14 days’ prior written notice of any proposed changes to your details; and
(d)
pay all costs incurred by us in registering and maintaining a financing statement (including registering a
financing change statement) on the Personal Property Securities Register and/or enforcing or
attempting to enforce the security interest created by the Agreement.
16.4
You agree that nothing in sections 130 or 143 of the PPSA will apply to the Agreement or the security under
the Agreement.
16.5
You agree to waive any rights you may have under sections 95, 123, 129, 130, 132(3)(d), 132(4), 135, 142
and 143 of the PPSA.
16.6
You agree that immediately on request by us you will procure from any person considered by us to be relevant
to our security position such agreement and waivers as we may at any time reasonably require.
17.
PRIVACY POLICY
17.1
We view protection of users’ privacy as a very important community principle and we clearly understand that
your information is one of our most important assets. Therefore, we only use your information as described in
our Privacy Policy.
17.2
You acknowledge that the Privacy Policy forms part of, and is incorporated into, these Terms and Conditions
and acceptance of these Terms and Conditions is acceptance of the Privacy Policy.
17.3
If you object to your information being transferred or used in the way set out in the Privacy Policy, please do
not purchase our Goods and/or Services.
18.
LAWS AND WAIVER
18.1
The Agreement is governed by and is to be construed in accordance with the laws of the State of Victoria.
The parties agree to submit to the exclusive jurisdiction of the courts of the State of Victoria.
18.2
If any provision of the Agreement is held by a court of competent jurisdiction to be illegal or unenforceable it
may be severed and the remaining terms or parts will continue in full force and effect.
18.3
Any failure of a party to exercise or enforce any provisions of, or any rights it may have under, the Agreement
shall not constitute a waiver of such right or provision unless such waiver is acknowledged and agreed to by
the other party in writing.
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