In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010;
“Anticipated Installation Date” means the anticipated date for installation of the goods and commencement of the services;
“Contract” means any contract for the provision of goods or services by L+O to the Customer;
“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Contract;
“Customer” means the person, jointly and severally if more than one, acquiring goods or services from L+O;
“goods” means goods supplied by L+O to the Customer in the course of providing the services;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
“L+O” means any of L+O Technologies Pty Ltd (ACN 101 064 920), L+O Technologies (West) Pty Ltd (ACN 136 262 523) or L+O Technologies (West) Underground Pty Ltd (ACN 136 262 505);
“PPSA” means the Personal Property Securities Act 2009 as amended;
“Quote” means any written quote provided by L+O to the Customer concerning the proposed supply of goods or services;
“services” means services supplied by L+O to the Customer and includes the installation of any goods;
“site” means the site where the goods are to be delivered and the services performed; and
“Terms” means these Terms and Conditions of Trade.
2. Basis of Contract
2.1 Unless otherwise agreed by L+O in writing, the Terms apply exclusively to every Contract and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any quote provided by L+O to the Customer is:
(a) valid for 30 days.
(b) an invitation to treat only, and
(c) only valid if in writing.
2.3 The Terms may include additional terms in L+O’s Quote, which are not inconsistent with the Terms.
2.4 A Contract is accepted by L+O when L+O accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods or services.
2.5 L+O has absolute discretion to refuse to accept any offer.
2.6 The Customer must provide L+O with its specific requirements, if any, in relation to the goods and services.
2.7 L+O may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
3.1 Unless otherwise specified, prices quoted for the supply of goods and services excludes GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 If the Customer requests any variation to the Contract, L+O may, in its discretion:
(a) increase the price to account for the variation; or
(b) cancel the Contract and provide a revised Quote for the goods or services.
(a) there is any change in the costs incurred by L+O in relation to goods or services; or
(b) there is any change required as a result of the final layout and configuration of the Site,
L+O may vary its price to take account of any such change, by notifying the Customer.
4.1 Unless otherwise agreed in writing:
(a) Subject to 4.1(b), full payment for the goods or services must be made within 30 days of the date of L+O’s statement.
(b) L+O reserves the right to require payment in full on delivery of the goods or completion of the services.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Payment terms may be revoked or amended at L+O’s sole discretion immediately upon giving the Customer written notice.
4.4 The time for payment is of the essence.
4.5 The Customer must make payment in full without any deduction or set-off.
5.1 If the Customer defaults in payment by the due date of any amount payable to L+O, then all money which would become payable by the Customer to L+O at a later date on any account, becomes immediately due and payable without the requirement of any notice, and L+O may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the rate specified in the Penalty Interest Rates Act 1983 (Vic) plus 2% for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify L+O from, all costs and expenses (including legal costs on an indemnity basis) incurred by L+O resulting from the default;
(c) cease or suspend provision of any further goods or services to the Customer;
(d) by written notice to the Customer, terminate any uncompleted Contract.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at L+O’s option, where the Customer become bankrupt or has an administrator, receiver, liquidator or similar functionary appointed in respect of its assets.
6. Passing of Property
6.1 Until L+O receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to L+O by the Customer:
(a) title and property in all goods remain vested in L+O and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for L+O;
(c) the Customer must keep the goods separate from its goods and maintain L+O’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for L+O in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee;
(e) in addition to its rights under the PPSA, L+O may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of L+O, and for this purpose the Customer irrevocably licences L+O to enter such premises and also indemnifies L+O from and against all costs, claims, demands or actions by any party arising from such action.
7. Personal Property Securities Act
7.1 The PPSA applies to these Terms. These Terms are a security agreement.
7.2 For the purposes of the PPSA, L+O has a Purchase Money Security Interest in all present and future goods supplied by L+O to the Customer and the proceeds of the goods.
7.3 The security interest arising under these Terms attaches to the goods when the goods are collected or dispatched from L+O’s premises.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on L+O will apply only to the extent that they are mandatory or L+O agrees to their application in writing; and
(b) where L+O has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
8. Customer’s Obligations
8.1 The Customer must:
(a) make provision for any Site requirements specified in the Quote;
(b) make the Site available to L+O by the Anticipated Installation Date; and
(c) be responsible for providing clean, safe and proper access to and at the Site.
8.2 The Customer warrants that it is the owner of the Site, or it is authorised to request the services be performed at the Site.
9. Risk and Insurance
9.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer.
9.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by L+O, unless recoverable from L+O on the failure of any statutory guarantee under the ACL.
10. Performance of Contract
10.1 Unless otherwise agreed:
(a) L+O will arrange for the delivery of the goods to the Customer, at the Customer’s cost; and
(b) delivery of the goods will be deemed to have occurred at the point of unloading the goods at the Site.
10.2 The Customer indemnifies L+O against any loss or damage suffered by L+O, its sub-contractors or employees as a result of delivery and installation, except where the Customer is a consumer and L+O has not used due care and skill.
10.3 The Customer must notify L+O of any anticipated delays in the availability or readiness of the Site for the Anticipated Installation Date at least 3 days prior to the Anticipated Installation Date.
10.4 If the Site is not prepared or available on the Anticipated Delivery Date and the Customer has not notified L+O to vary the Anticipated Installation Date in accordance with clause 10.3, the Customer will:
(a) be deemed to have taken delivery of the goods from the Anticipated Delivery Date;
(b) be responsible for any additional costs or expenses incurred by L+O, including in relation to storage and labour costs.
10.5 Any period or date for delivery of goods or provision of services stated by L+O is an estimate only and not a contractual commitment.
10.6 L+O will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
10.7 If L+O cannot complete the services by any estimated date, it will complete the services within a reasonable time.
11.1 If the Customer is a consumer, then nothing in this Contract restricts, limits or modifies the Customer’s rights and remedies against L+O for failure of a statutory guarantee.
11.2 Subject to clause 11.1, this Contract does not otherwise include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, or any contractual remedy for their failure.
11.3 L+O does not provide any express warranty with the goods. L+O will use its reasonable endeavours to enable the Customer to obtain the benefit of any manufacturers’ warranties.
11.4 L+O is not liable to the Customer for any indirect or consequential losses suffered by the Customer or any third party, unless the Customer is a consumer (in which case, L+O’s liability for indirect or consequential loss is limited to the extent that the loss was reasonably foreseeable).
11.5 Nothing in the Terms excludes or displaces any applicable State or Federal legislation.
12.1 If L+O is unable to deliver or provide the goods or services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on L+O once the order has been accepted.
13. Force Majeure
13.1 L+O is not liable in any way howsoever arising under the Contract to the extent that it is prevented from acting by events beyond its reasonable control. If an event of force majeure occurs, L+O may suspend or terminate the Contract by notice to the Customer.
14.1 The law of Victoria from time to time governs the Terms.
14.2 L+O’s failure to enforce any of these Terms shall not be construed as a waiver of any of L+O’s rights.
14.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
14.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.