Terms and Conditions
Agreement means these terms and conditions and includes Orders and Invoices.
LWS means Live Wire Services Pty Ltd (CAN 145 230 164).
Claims means actions, suits, proceedings, judgements, orders, claims, demands, costs, damages, losses and all liability whatsoever, including all legal costs on a solicitor and own client basis.
Customer means the party named as the customer in the Order.
Due Date means, in respect of an Invoice, the date that is 30 days after the Invoice date, or such other date as LWS may agree to in writing.
Event of Default is defined at clause 15.1.
Goods means the goods supplied by LWS to the Customer, including all goods set out or identified in the Order and Invoice.
Insolvency Event means the Customer (i) is insolvent, has a receiver, manager, administrator, liquidator or controller appointed over it or its assets or makes composition with its creditors; (ii) commits an act of bankruptcy or insolvency, liquidation, administration or appointment of any of the persons referred to in clause (i) above; (iii) is the subject of an application for winding up, deregistration or administration; (iv) calls a meeting of its creditors; (v) passes a resolution for its winding up, deregistration or administration; or (vii) compromises with its creditors.
Invoice means an invoice issued by LWS to the Customer.
Order means the Customer’s order accompanying this Agreement or otherwise placed or communicated with LWS.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register maintained in accordance with the PPSA.
Purchase Price means the price for the Goods as set out in the Invoice.
Services means any services provided by LWS at the request of the Customer.
2.1. Reference in this Agreement to the singular includes the plural, a clause, is to a clause in this Agreement and a party includes the party’s successors, administrators, representatives and permitted assigns.
2.2. Where a party comprises two or more persons then, unless expressly stated otherwise (i) the covenants and obligations by or on behalf of that party binds those two or more persons jointly and each of them severally; and (ii) the benefit of any covenant or obligation in favour of that party accrues to and may be enforced by any one or more of those persons.
This Agreement will apply to the supply of all Goods by LWS to the Customer and to the performance of all services by LWS for the Customer, whether for cash or credit.
By submitting an Order to LWS, the Customer agrees to purchase the Goods from LWS or for LWS to perform the Services on the terms set out in this Agreement. LWS may reject any Orders at its sole discretion by giving written notice of the rejection to the Customer.
All Orders are subject to the availability of Goods and LWS’s availability to perform the Services.
6. Purchase Price and Payment Terms
6.1. The Customer agrees to pay LWS the Purchase Price, delivery costs, handling fees, and all other rates, fees, levies and costs referred to in this Agreement or an Invoice, including any applicable GST, duties, penalties, levies or freight and other relevant charges. The Purchase Price does not include any taxes, fees, levies, duties, charges, sales tax, customs duty, excise tax and stamp duty imposed or assessed by all government authorities and contributions in connection with the supply of the Goods or performance of the Services by LWS, which are the responsibility of the Customer.
6.2. Invoices will be issued by LWS on a monthly basis and must be paid in full by the Customer by the Due Date. Invoices not paid in full and on time will attract interest at the rate of 21% per annum, calculated daily.
6.3. LWS is not obliged to extend credit to the Customer. LWS may require the Customer to pay a deposit or pay the amount payable by the Customer pursuant to clause 6.1 in full to LWS prior to the supply of any Goods or the performance of any Services.
6.4. Payment must be made by cash, bank cheque, direct deposit, or credit card, or by any other method agreed by LWS.
6.5. If any payment is dishonored the Customer is liable to LWS for any dishonor fees LWS incurs as a result.
7. Customer Obligations
By signing or executing this Agreement or submitting an Order to LWS the Customer agrees and warrants that no Insolvency Event has occurred in respect of the Customer and that it will advise LWS in writing of the occurrence of any Insolvency Event no later than two business days of such event occurring and the person who signs this Agreement and the Order is authorised to do so on behalf of the Customer and hereby binds the Customer.
8. Delivery of Goods
8.1. The Customer acknowledges that delivery of the Goods may take more than 6 weeks from the date of the Order.
8.2. The Customer must nominate an address for delivery of the Goods in the Order. If no address is nominated, the Customer must collect the Goods from LWS’s address.
8.3. Delivery of the Goods will take place:
(a) if the Customer is to collect the Goods, when the Customer (or its nominated carrier) collects the Goods from LWS ‘s address;
(b) if the Goods are to be delivered by LWS, when the Goods are delivered to the Customer’s nominated address.
8.4. Storage costs may be charged for any Goods which remain uncollected at LWS’s premises for a period of more than seven (7) days after the agreed date for collection.
8.5. The Customer must make all necessary arrangements to take delivery of the Goods whenever they are tendered for delivery. In the event the Customer is unable to take delivery of the Goods as arranged LWS will be entitled to charge a fee for redelivery.
8.6. Delivery of the Goods to a third party nominated by the Customer is deemed delivery to the Customer for the purposes of this Agreement.
8.7. LWS may deliver the Goods by separate installments, with each such installment invoiced and paid in accordance with this Agreement.
8.8. LWS will not be liable for any loss or damage whether indirect, consequential or special (including loss of profit, loss of opportunity or payment of liquidated sums or damages under any other agreement) arising from any delay or failure to deliver the Goods (or any of them) where such delay or failure is due to circumstances beyond LWS’s control.
Notwithstanding clause 10, all risk in the Goods passes to the Customer upon delivery. If any of the Goods are damaged or destroyed prior to title in them passing to the Customer, LWS is entitled, without prejudice to any of its other rights and remedies under this Agreement, to any insurance proceeds payable for the Goods.
10. Retention of Title
10.1. Ownership, property, and title in all Goods will remain with LWS until the Customer has paid all monies owing to LWS for all Goods provided.
10.2. Until such time as property in the Goods passes to the Customer, the Customer shall hold the Goods as bailee for LWS, and hereby assigns all legal and equitable right and title to the proceeds of the sale of the Goods to LWS. The Goods shall be kept separate and clearly identifiable as property of LWS until property in the Goods passes to the Customer. LWS may request in writing that the Customer return the Goods at any time until property in them has passed to the Customer. Should the Customer fail to return the Goods to LWS upon such request, LWS may, without prejudice to any of its other rights and remedies under this Agreement, enter the Customer’s premises or any other premises where the Goods may be stored, by servants or agents for the purpose of recovering or re-selling the Goods, and any cost incurred as a result of such action will be the Customer’s responsibility.
11.1. The Customer must inspect the Goods upon delivery and notify LWS in writing within seven (7) days of any alleged defect. On the expiry of the seven (7) day period the Goods are deemed to comply with this Agreement and be free of any defects whatsoever.
11.2. Returns will only be accepted if the Customer has followed the procedure set out in clause 11.1, LWS has agreed in writing to accept the return of the Goods, the Goods are returned at the Customer’s cost within seven (7) days of the date on which LWS agrees in writing to accept the return of the Goods and the Goods are returned in the condition in which they were delivered.
12.1. LWS’s warranty policy, as set out on page 2 of this Agreement, applies to the Goods.
12.2. Subject to clauses 12.1 and 13 and to the extent permitted by law:
(a) no warranty is given by LWS as to the quality or suitability of the Goods or Services for any purpose and any implied warranty, is expressly excluded;
(b) LWS shall not be responsible for any loss or damage to the Goods, or caused by the Goods or Services, or any part thereof however arising; and
(c) LWS shall not under any circumstances be liable to the Customer or any third party (including the Customer’s customers) in respect of any indirect, consequential or special losses (including loss of profit, loss of opportunity or payment of liquidated sums or damages under any other agreement).
13. Australian Consumer Law
13.1. The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to the sale of Goods by LWS to the Customer and cannot be contracted out of, they apply and override any inconsistent provisions in this Agreement but only to the extent of the inconsistency.
13.2. Where the Customer is entitled to a statutory right or term that LWS is not able to exclude but LWS is entitled to limit its remedy for a breach of that right or term, then LWS’s liability for breach of that right or term is limited to (at LWS election):
(a) in the case of Goods, the repair or replacement of the Goods or the supply of substitute goods (or the cost of doing so); or
(b) in the case of Services, the supplying of the Services again, or the payment of the cost of having the Services supplied again.
14. Limitation of Liability
To the extent permitted by law:
(a) the maximum aggregate liability of LWS to the Customer for any Claim under or relating to this Agreement shall be limited to the amount paid by the Customer to LWS pursuant to this Agreement; and
(b) LWS will not be liable to the Customer for any indirect, consequential or special loss (including loss of profit, loss of opportunity or payment of liquidated sums or damages under any other agreement).
15.1. Event of Default means the Customer
(a) fails to pay, or indicates that it will not pay, for the Goods by the Due Date;
(b) enters into an agreement for the sale or proposed sale of its business or assets without notifying LWS; or
(c) breaches this Agreement, and if such breach is capable of remedy, fails to remedy the breach within seven (7) days of receipt of notice from LWS requiring it to do so.
15.2. If the Customer:
(a) commits an Event of Default; or
(b) is subject to an Insolvency Event;
then LWS may, without prejudice to any other remedy available to it:
(c) require immediate payment of all fees and moneys owed by the Customer to it;
(d) charge the Customer for all costs and expenses (including without limitation all legal costs and expenses on a full indemnity basis) incurred enforcing compliance with this Agreement and/or recovering the Goods;
(e) claim damages from the Customer for breach of this Agreement; and/or
(f) cease to or suspend supply of any further Goods to the Customer.
The Customer hereby charges in favour of LWS all of its legal and equitable interest (present and future) of whatsoever nature in any and all real property and present and after acquired personal property with payment of all monies owed by the Customer to LWS and with performance of all obligations set out in this Agreement by the Customer. The Customer agrees to execute any documents and do all things necessary as required by LWS to register the security granted in this clause 16 and appoints each director of LWS as its attorney to execute and register such documents and instruments.
17. Cancellation and Withdrawal of Orders
17.1. The Customer may not defer or cancel an order once accepted by LWS without the consent of LWS.
17.2. The Customer shall be responsible for and agrees to indemnify LWS for all costs incurred by LWS as a result of the Customer cancelling an Order or the suspension of the provision of Goods as a result of the occurrence of an Event of Default.
17.3. In the event that the provision of Goods to the Customer is cancelled, suspended or terminated for any reason LWS shall have no responsibility whatsoever for any loss or damage of any kind which may result directly or indirectly from such cancellation or suspension or from any recovery of Goods pursuant to this Agreement.
18. Personal Property Securities Act 2009
18.1. The Customer acknowledges and agrees (without limiting anything in this clause 18) that this Agreement constitutes a security agreement for the purposes of the PPSA in relation to the Goods and that LWS may record in the PPSR a security interest (including a purchase money security interest under s14(1)(c) of the PPSA) against the Customer in relation to the Goods. The Customer agrees to do such things, as LWS may require from time to time to protect its position as a secured party.
18.2. The Customer waives any right to receive a verification statement in accordance with s157 of the PPSA and waives and agrees to contract out of any provision referred to in s115 of the PPSA (including but not limited to any right to receive any notice and any provision which would otherwise prohibit or limit the exercise by LWS of any right in relation to the Goods).
18.3. Words defined in the PPSA have the same meaning where used in this Agreement unless the context requires otherwise.
19.1. A notice under this Agreement is deemed duly served if it is in writing and is sent to the address, in respect of the Customer as stated in the Order, and in respect of LWS as set out in this Agreement, by certified mail, facsimile, personal delivery or email (provided there is proof of delivery of the fax or email).
19.2. This Agreement embodies the entire agreement between the parties in respect of the ordering, supply, delivery, and payment of the Goods, and any order received from the Customer shall be deemed to incorporate the terms and conditions contained herein, notwithstanding any purported change to this Agreement specified by the Customer.
19.3. This Agreement does not include any terms or conditions of the Customer unless agreed by LWS in writing.
19.4. Any waiver or failure to execute any rights by LWS shall not be deemed a waiver of any further or other right of LWS in respect of the Customer.
19.6. The Customer shall not be entitled to set off against, or deduct from the Purchase Price, any sums owed or claimed to be owed to the Customer by LWS nor to withhold payment of any Invoice because part of that Invoice is in dispute.
19.7. If a provision of this Agreement is wholly or partly invalid, illegal, unenforceable, void or voidable, this Agreement must be construed as if that provision or part provision had been severed, and the parties remain bound by the provisions and part provisions remaining after severance.
19.8. LWS may assign all or any part of its rights and obligations without the Customer’s consent.
19.9. The Customer agrees that LWS may review this Agreement at any time, and if following such review there is to be any change to this Agreement, then that change will take effect from the date on which LWS notifies the Customer of such change.
19.10. This Agreement shall be governed by and construed in accordance with the laws of Western Australia and the Parties irrevocably submit to the jurisdiction of the courts of Western Australia with respect to any Claim relating in any way to this Agreement.
19.11. This Agreement may be exchanged by execution in counterparts and the exchange of executed facsimile or PDF copies shall constitute a binding and complete agreement.
In this Warranty Policy:
Us/Our/We means LWS Services Pty Ltd (ACN 159 734 924)
You/Your means the person, organisation, partnership, corporation, trust or other entity who has purchased goods from Us.
1. Our Warranty
We warrant that the Goods will be free from any defects in manufacturing for the period of 12 months from the date of delivery to the Customer (fair wear and tear excluded). During this 12 month period We will, at Our option, repair or replace any defective Goods within a reasonable time and free of charge.
2. Australian Consumer Law
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. The rights in this warranty are in addition to your statutory rights. Nothing in this warranty limits Your rights at law.
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