L & O Technologies Pty. Ltd. – Terms of Trade (“Terms”)
1 Application of Terms
1.1 These Terms govern our supply of Works to you, including supplies on a cash basis.
1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.
2.1 Each quotation that we issue:
(a) is an estimate only;
(b) is not an offer or obligation to carry out any Works;
(c) is exclusive of GST;
(d) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a contract is formed; and
(e) contains a price on the basis that all Works are to be carried out during Business Hours,
unless the quotation states otherwise.
2.2 Quotations provided orally are subject to written confirmation.
2.3 A quotation may include additional terms or conditions, which will supplement these Terms.
2.4 If we are required to provide an estimate of measurements and quantities as part of our quotation, you must verify the accuracy of our estimated measurements and quantities prior to placing your Order. If you require any changes to our estimated measurements and quantities, you must request such changes in writing before placing your Order.
2.5 Should you wish to have the Works carried out outside of Business Hours please let us know as additional charges may apply.
3 Formation of contract
3.1 We are not obliged to supply any Materials or carry out any Works until after a contract is formed.
3.2 A contract is formed, and you have accepted these Terms, when:
(a) you have placed an Order with us; and
(b) we have received any deposit we have required from you in respect of the Order before progressing it; and
either we have:
(c) accepted your Order in writing; or
(d) supplied you with any Materials or carried out any Works following receipt of your Order.
3.3 If you revoke an Order:
(a) prior to the formation of a contract then:
(i) we will refund you any deposit you have paid in respect of that Order; and
(ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
(b) after the formation of a contract then unless we are in breach of the contract:
(i) you must pay all our reasonable costs associated with fulfilment of your Order; and
(ii) we may apply any deposit you have paid towards those costs.
4.1 The price payable for the Works will be:
(a) the price agreed in writing; or alternatively
(b) the price by our prevailing price list/rates as when you place your Order.
4.2 We may, prior to commencing the Works, vary our price or rates by notice to you if you request:
(a) the Works be carried out outside Business Hours;
(b) a Variation to the Materials or the Works; or
(c) that we delay commencement of the Works for sixty (60) days or more.
4.3 Where we vary the price or rates payable pursuant to subclause 4.2, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.
4.4 Following commencement of the Works, if:
(a) you request a Variation to the Materials or the Works; or
(b) a Variation is otherwise required,
then any such Variations:
(c) must be agreed in writing prior the Variation being carried out; and
(d) will be charged on the basis of the price/rates stated in our quotation.
5 Performance of the Works
5.1 You must ensure that Site amenities required by our Personnel, including water, electricity (i.e. 240 volt), and sanitary accommodation (i.e. serviced toilet facilities) are made available for our Personnel’s use (at no cost to us or our Personnel). If you fail to make such amenities available to our Personnel, we will be entitled to invoice you any additional costs we incur in procuring or providing such amenities.
5.2 Prior to us commencing the Works, you must:
(a) obtain, at your expense, all Approvals relevant to the Site necessary for us to carry out the Works;
(b) engage a licensed service locator to clearly mark the location of all services above and below ground, including drains, pipes, sewers, mains, and telecommunications and electricity cables;
(c) unless the contract states we are responsible for organising and providing such things, organise and provide:
(i) all necessary cranage and scaffold; and
(ii) any required safety handrails, harness safety points, and/or other safety devices necessary for our Personnel to safely carry out the Works;
(d) provide us with such information and documentation that we reasonably require to carry out the Works; and
(e) inform us of any special requirements pertaining to Works (such as Site-specific policies or safety requirements).
5.3 You acknowledge and agree that:
(a) unless the contract expressly states otherwise:
(i) all lead times are subject to drawing approvals (where applicable), Materials availability, current capacity, credit application approval, and provision of all necessary information to allow us to proceed with your Order;
(ii) time in respect of completion of the Works is not of the essence; and
(iii) while we will take reasonable endeavours to complete the Works by the estimated date for completion, any timeframe or date for completion of the Works is an estimate only and is not a contractual commitment;
(b) all Works carried out outdoors are contingent on suitable weather conditions;
(c) we may suspend or cease performance of the Works at any time by written notice to you if, in our opinion (acting reasonably), we determine the Site to be unsafe; and
(d) Where we have carried out temporary repairs at your request or direction:
(i) we offer no guarantee the that initial fault will not reoccur or that further damage will not occur; and
(ii) we will promptly advise you of the fault and will provide you with a quotation for the full repair.
5.4 If commencement or completion of the Works is delayed due to any event beyond our reasonable control, such as:
(a) Materials unavailability;
(b) unsuitable weather conditions; or
(c) your failure to:
(i) select the Materials;
(ii) have the Site ready us to carry out the Works; or
(iii) notify us the Site is ready us to carry out the Works,
then you agree we may extend the time for commencement or completion of the installation (as the case may be) by a period of time equal to the delay.
5.5 You must at all reasonable times permit our Personnel to have free, clear, and unrestricted access to the Site to enable us to fulfil our obligations without unreasonable interruption, impediment, delay, or obstruction.
5.6 Should asbestos or any other hazardous materials be discovered at the Site which pose (or may pose) a health risk to any person, then we may suspend performance of the Works until such time as licensed contractors commissioned by you have cleared all such materials from the Site.
6.1 Where the contract provides we are to supply Materials only, risk of loss, damage, or deterioration to the Materials passes to you, and delivery is deemed to occur, at the time:
(a) you or any third party on your behalf collect the Materials from us;
(b) we or our nominated carrier deliver the Materials to the delivery location stated in your Order (or to such other location as agreed in writing); or
(c) your nominated carrier takes possession of the Materials.
6.2 Where the contract provides we are to both supply and install the Materials, risk in the Works passes to you once we have completed the Works.
7 Payment terms
7.1 Unless you have a Credit Facility with us which is not in default:
(a) deposits we have requested must be paid before we will commence the Works; and
(b) you must pay for the Works on the date or dates we determine, which may be:
(i) on completion of the Works; or
(ii) by way of progress payments in accordance with our payment schedule (which may include any agreed Variations and any Materials delivered to the Site but not yet installed).
7.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
7.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
7.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
7.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
8.1 You must inspect the Works on completion and must within seven (7) days:
(a) give us notice in writing, with particulars, of any Claim that the Works not in accordance with the contract (including any Claim for error or omission, incorrect supply, shortfall, or damage or defect); and
(b) at our request, provide us with photographic evidence (to our satisfaction) of any alleged damage or defect.
8.2 If, following your approval of the final Works, you become aware of any damage or defect in the Works, you must give us notice in writing, with particulars, of any Claim that the Works do not conform with the contract as soon as practicable after the damage or defect becomes evident.
8.3 Upon receipt of your notice under either subclause 8.1 or 8.2 allow us to enter upon the Site and inspect the Works that are the subject of your Claim.
9.1 We will accept the return of any Materials if:
(a) the Materials supplied do not conform with the contract;
(b) the Materials are defective; or
(c) we are required by law to accept the return of the Materials.
9.2 At our discretion, we may accept the return of Materials if you change your mind if:
(a) you agree to:
(i) pay the lesser of a handling and administration charge of 20% of the purchase price of the returned Materials or $200; and
(ii) reimburse us for all costs we incur in connection with the return of those Materials, such as any restocking fees charged by our suppliers (except for Materials we have incorrectly supplied or we agree are defective);
(b) the Materials are in substantially the same condition to the condition in which they were delivered; and
(c) the Materials were not specifically produced or procured at your request.
9.3 You indemnify and release us from any damage that occurs to any Materials in return transit. You should ensure that any returned Materials are insured against such damage.
10 Retention of title
10.1 Until such time as you have made payment in full (in cash or cleared funds) for any Materials we have supplied:
(a) title in the Materials does not pass to you and we retain the legal and equitable title in the Materials;
(b) you will hold the Materials as fiduciary and bailee for us and agree to store the Materials in such a manner as to enable them to be readily identifiable as our property; and
(c) you undertake to not mix the Materials with similar goods.
10.2 While title in the Materials remains with us, and provided the Materials have not become fixtures, you permit us to enter upon the Site and any other premises you occupy where the Materials may be kept (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Materials and, when you are in default of payment of any invoice, to repossess any Materials in your possession, custody, or control.
10.3 Where we exercise our right of entry pursuant to subclause 10.2, you agree that us doing so will not give rise to any Claim for trespass or similar action against us or our officers, employees, and agents.
10.4 Where we have retaken Materials into our possession, we have the right to sell or deal with those Materials, and, if necessary, sell such Materials, and you hereby grant us an irrevocable licence to do all things necessary to sell those Materials.
10.5 For the removal of doubt, our interest under this clause 10 constitutes a purchase money security interest for the purposes of the PPS Act.
11 Security interest
11.1 Unless you have obtained our prior written and fully informed consent, you undertake not to:
(a) register a financing change statement in respect of a security interest in our favour; or
(b) create, or purport to create, any security interest in the Materials (or any proceeds derived from the sale of such Materials), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Materials in favour of any third party.
(a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act; and
(b) agree that, to the extent permitted by the PPS Act:
(i) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
(ii) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
11.3 We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
11.4 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
12 Description of Materials
If you require any Materials for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Materials will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Materials will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Materials for that purpose.
13 Customer Material
13.1 You warrant and represent to us that all Customer Material:
(a) is accurate and correct; and
(b) will not infringe the Intellectual Property Rights of any third-party.
13.2 You grant us a non-exclusive, non-transferrable, royalty free, perpetual, worldwide licence to use the Customer Material for:
(a) the purposes of carrying out the Works; and
(b) marketing and advertising.
14 Intellectual Property Rights
14.1 All right, title, and interest in the Intellectual Property Rights in and to all Working Documents are, and will at all times remain, our property.
14.2 All improvements, derivatives, and modifications to the Intellectual Property Rights contemplated by subclause 14.1 (the Improvements) vest in us immediately on creation.
14.3 You acknowledge and agree that you have no rights to use our Intellectual Property Rights under these Terms, except as expressly set out herein, unless otherwise agreed in writing.
15 Agent capacity
If you act as an agent for another party or parties (whether disclosed to us or not), you warrant and represent to us that:
(a) you hold a current and proper authority to engage us on behalf your principal(s);
(b) any Works you request we carry out are within the authority and financial limits authorised by your principal(s);
(c) you hold sufficient funds to ensure payment of all amounts due and owing to us under the contract;
(d) at our request, you will provide the name(s), address(es), and contact details of your principal(s); and
(e) if you fail to pay sums to us when they fall due as a result of a dispute between you and your principal(s) regarding your authority, or if you fail to hold sufficient funds in accordance with subclause 15(c), then you agree to indemnify us for the amount due and owing.
16.1 Subclauses 16.2 to 16.4 apply if you fail to pay sums to us when they fall due.
16.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.
16.3 We may suspend or cease the performance of the Works.
16.4 We may require pre-payment in full for any Materials which have not yet been supplied or any part of the Works which have not yet been completed.
17.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
17.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
17.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
18 Limitation of liability
18.1 No party is liable to the other party for any Consequential Loss, including under clause 17, however caused arising out of or in connection with any contract of which these Terms form part.
18.2 While we will take reasonable endeavours to meet any estimated timeframe or date for completion of the Works, you acknowledge and agree that we are not liable for any delay associated with meeting any such timeframe or date.
18.3 You acknowledge and agree that we are only responsible for parts of the Site we carry out the Works on. To the extent permitted by law, we accept no liability for any goods or materials installed by, or repairs effected by, any third party prior to us commencing the Works.
18.4 If the contract is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) (in the case of a supply of Materials):
(i) us repairing or replacing the Materials; or
(ii) us paying you the cost of having the Materials repaired or replaced.
(b) (in the case of a supply of Works):
(i) us carrying out the Works again; or
(ii) us paying you the cost of having equivalent Works supplied.
A party may, with immediate effect, terminate any contract of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven (7) days; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or provisional liquidators.
20 Building and Construction Industry Security of Payment Act 2002
20.1 At our sole discretion, if there any disputes or Claims for unpaid Materials or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic) (Security of Payment Act) may apply.
20.2 For the removal of doubt, nothing in these Terms is intended to have the effect of contracting out of any provisions of the Security of Payment Act.
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.
A party may only assign its rights under the contract with the written consent of the other party.
You acknowledge that we reserve the right to subcontract:
(a) the supply of any part of the Materials to be supplied; and
(b) any services forming part of the Works,
however, any subcontracting will not relieve us of any of our obligations to you.
24 Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
(a) any terms governing your Credit Facility;
(b) any additional terms or conditions contained in our quotation applicable to the Materials or the Works; and
(c) these Terms.
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
26 Governing law and jurisdiction
26.1 Our relationship is governed by and must be construed according to the law applying in the State of Victoria.
26.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria with respect to any proceedings that may be brought at any time relating to our relationship.
In these Terms, unless the context otherwise requires, the following apply.
27.1 Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.
27.2 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
27.3 Business Hours means between 08:00am to 4:30pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Materials or Services are, or are to be, supplied.
27.4 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract.
27.5 Consequential Loss includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
27.6 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
27.7 Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Materials and Works and associated charges.
27.8 Customer means the person or other entity who has placed an Order with us.
27.9 Customer Material means all information and documentation provided to us by you (or on your behalf) in the course of us carrying out the Works.
27.10 Force Majeure Event means any act of God, decrees, or regulations of government authorities, casualty, fire, explosion, storm, flood, frost or snow, earthquake, embargo, industrial action, strike, lockout, civil commotion, riot, insurrection, war, epidemic or pandemic, damage to or destruction of facilities, equipment or mechanical breakdown, failure of a third-party supplier or service provider, or any other occurrence which is not in the reasonable control of the affected party.
27.11 Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
27.12 Materials means all goods and materials supplied by us, as described on our quotation, invoice, or any other form issued by us.
27.13 Order means a written or oral order placed by you requesting that we carry out Works.
27.14 Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).
27.15 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
27.16 Site means the location where we are to carry out and complete the Works.
27.17 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
27.18 Supplier, we, us means L & O Technologies Pty. Ltd. (ACN 101 064 920).
27.19 Variation means a change to the Works, including any change to, addition, or omission, in the scope, quality, or character of the Works.
27.20 Working Documents means all plans, designs, specifications, and schedules created by us in the course of or in relation to any contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such plans, designs, specifications, and schedules (whether currently existing or created in the future).
27.21 Works means all services (including consultation, design, installation, troubleshooting, and repair services) carried out by us, as described on our quotation, invoice, or any other form issued by us (and where the context requires will include any supply of Materials forming part of the Works).
In these Terms, unless the context otherwise requires:
28.1 A time is a reference to the time zone of Victoria, Australia unless otherwise specified.
28.2 $, dollar, or AUD is a reference to the lawful currency of Australia;
28.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
28.4 A right includes a benefit, remedy, authority, discretion, or power.
28.5 The singular includes the plural and vice versa, and a gender includes other genders.
28.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
28.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
28.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
28.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.