TERMS OF TRADE.
“Logicar” means Hoists & Equipment Pty Ltd (ACN 631563141 / ABN 74631563141).
“Customer” means a buyer or any person acting on behalf of and with the authority of a buyer of Logicar goods and/or services.
“Goods” means Products and/or Services supplied by Logicar to the Customer.
“Services” means all services supplied by Logicar to the Customer and includes any advice or recommendations, intellectual or intangible property under the PPSA and where relevant includes any supply of Goods.
"PPSA" means the Personal Property Securities Act 2009 (Cth) and associated Regulations as amended.
“Price” means the cost of the Goods and/or Services as agreed between Logicar and the Customer.
Goods / Services
All Goods / Services shall be as described on the invoices, quotation, work authorisation, sales order, emails or any other forms as provided by Logicar to the Customer.
Price and Payment
At Logicar’s sole discretion; The Price shall be as indicated on invoices provided by Logicar to the Customer in respect of Goods supplied; or The Price shall be Logicar’s current price at the date of delivery of the Goods according to Logicars current Price list; or Logicar’s quoted Price which shall be binding upon Logicar provided that the Customer shall accept in writing Logicar’s quotation within thirty (30) days provided that Logicar may, by giving notice to the Customer, at any time up to seven (7) days before delivery increase the Price of the Goods to reflect any increase in cost to Logicar beyond the reasonable control of Logicar.
The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Logicar.
A deposit from the Customer may be required at the sole discretion of Logicar
Time for payment for the Goods is the essence and is stated on the invoice, quotation or any other order forms. If no time is stated on the invoice, payment is due on delivery of the Goods.
Payment will be made by cash, bank cheque, direct credit, direct debit or any other method as agreed to between the Customer and Logicar.
Logicar may withhold delivery of Goods until the Customer has paid for them in full, in which event payment shall be made before the delivery date.
DELIVERY OF GOODS/SERVICES
Delivery of the Goods shall be made to the Customer’s address.
The Customer may make all arrangements necessary to take delivery of the Goods whenever they are organised for delivery from Logicar’s warehouse.
Where the customer requests Logicar to organise delivery, the cost of delivery and insurance that the Customer directs Logicar to incur shall be reimbursed by the Customer and be detailed on the Logicar invoice. The carrier shall be deemed to be the Customer’s agent.
Where this is no agreement that Logicar shall send the Goods to the Customer, delivery to a carrier at the expense of the Customer is deemed to be delivery to the Customer.
Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
Any failure of Logicar to deliver shall not entitle either party to treat the sale contract as repudiated.
Logicar shall not be liable for any loss or damage due to failure by Logicar deliver any or all of the Goods promptly or at all.
Notwithstanding if Logicar retains property in the Goods, all risk for the Goods passes to the Customer on delivery.
If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, Logicar is entitled to receive all insurance proceeds payable in respect of the Goods. Logicar will apply the insurance proceeds as follows: first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid; second, in payment of the outstanding Price of any other Goods supplied to the Customer by Logicar whether under these terms and conditions or otherwise.
The Customer acknowledges that the Customer buys the Goods relying solely upon it’s own skill and judgment and does not rely on Logicar’s statements or advice.
The Customer shall inspect the Goods on delivery and shall, within 24 hours of delivery, notify Logicar of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote and provide photographic evidence.
The Customer shall give Logicar an opportunity to inspect the Goods within a reasonable time frame from delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
AUSTRALIAN CONSUMER LAW
Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law), Logicar does not give any express or implied warranties and makes no representations in relation to its Goods or Services including quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to its Goods or Services.
The Customer should make and rely upon the Customer’s own assessments and enquires to verify the accuracy of the information provided by the Customer.
Logicar’s liability under any non-excluded implied warranty is limited to: in the case of Services, the costs of having the Services supplied again; and in the case of Goods, the lowest of the costs replacing the Goods, acquiring the equivalent of Goods or having the Goods repaired.
DEFAULT AND CONSEQUENCES OF DEFAULT
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 1.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Logicar from and against all Logicar’s costs and disbursements including on a solicitor and own client basis.
In the event that: any money payable to Logicar becomes overdue, or in Logicar’s opinion the Customer will be unable to meet its payments as they fall due; or the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer, then; Logicar shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and all amounts owing to Logicar shall, whether or not due for payment, immediately become payable.
The Customer agrees that all Goods or Services supplied by Logicar to the Customer shall remain the property of Logicar and title in all Goods of Services supplied shall not pass to the Customer until such time as Logicar has: been paid in full for all Goods supplied; and received payment of all other sums that are owing by the Customer to Logicar; and the moneys owing referred to above have been collected and cleared by Logicar.
Where Logicar has not been paid in full for any Goods supplied to the Customer and/or in full for any other amounts which are due for payment by the Customer to Logicar, then the Customer shall hold any such Goods which it has been supplied by Logicar upon trust and as a fiduciary for Logicar and shall store and identify all such Goods in a manner that clearly shows Logicar’s ownership thereof; the Customer must not sell any Goods supplied without the prior written consent of Logicar or except in the ordinary course of the Customer’s business; the Customer shall have no right or claim to any right or interest in the Goods to secure any liquidated or unliquidated debt or obligation that Logicar owes or may owe to the Customer; the Customer may not claim any lien over the Goods; the Customer agrees that it shall not create any absolute or de feasible interest in the Goods in relation to any third party except as may be authorised by Logicar ; and without prejudice to Logicar’s rights as an unpaid Logicar or any of its other rights or remedies to retake possession of Logicars Goods from the Customer, the Customer hereby agrees to deliver up Goods to Logicar upon demand by Logicar and otherwise agrees that Logicar may recover possession of the Goods at any site owned, possessed or controlled by the Customer and the Customer agrees that Logicar has an irrevocable licence to do so.
Where title has not passed to the Customer in Goods supplied by Logicar to the Customer and those Goods are sold to a third party by the Customer, then the proceeds of such a sale by the Customer, to the extent that they are deemed to equal in dollar terms to the amount owing by the Customer to Logicar on any account at the time of receipt of such proceeds, shall be held upon trust by the Customer for Logicar in a separate account until such time as full payment is made of all amounts owing by the Customer to Logicar.
The Customer agrees to indemnify and hold harmless Logicar against all loss and damage incurred or sustained by Logicar as a result of or in relation to the exercise of Logicar’s retention of title rights.
The above shall apply in respect of any Goods supplied by Logicar to an inter-related account of a Buyer where the inter-related account is in default.
Logicar may cancel these Terms of Trade or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. Logicar shall not be liable for any loss or damage whatever arising from such cancellation.
If the Customer chooses to cancel any order it must notify Logicar in writing. The Customer will indemnify Logicar for any loss, damage, expense or costs Logicar incurs as a result of the Customer cancelling any order.
The Customer acknowledges that the Goods are sold subject to a manufacturers’ warranty. Logicar will be under no obligation whatsoever in relation to any manufacturers’ warranty. Logicar excludes all warranties in relation to the supply of the Goods and/or Services unless otherwise notified by Logicar to the Customer in writing. If any warranty is agreed to by Logicar in writing, such warranty begins from Invoice date.
Except to the extent by law applying to these Terms of Trade that it is not lawful to exclude such liability, Logicar is not liable to the Customer for any loss or damage arising directly or indirectly in connection with the Goods, their use or otherwise.
Notwithstanding the generality of the above, Logicar expressly excludes liability for consequential loss or damage, included but not limited to the loss or damage to any other equipment or property (whether or not the same may be in Logicar’s care, custody or control), or for loss of profit, business, revenue, good will or anticipated savings.
In the event that any exclusion liability in these Terms of Trade is held to be invalid for any reason, and Logicar becomes liable for loss or damage that may limited or capable to be limited in law, such liability is limited to the Price of the Goods and/or Services supplied to the Customer.
INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that any and all of the trade marks, copy rights, patents and other intellectual property rights used in connection with the Goods in which Logicar or the respective manufacturer, developer or third party has an interest remain the sole property of Logicar or such manufacturer, developer or third party. The Customer must not during or at any time in any way question or dispute ownership.
PRIVACY ACT 1988 (as amended)
The Customer agrees for Logicar to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Logicar.
The Customer agrees that Logicar may exchange information about Buyer with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency to assess an application by Buyer; notify other credit providers of a default by the Customer; exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and assess the credit worthiness of Buyer.
The Customer consents to Logicar being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Customer agrees that Personal Data provided may be used and retained by Logicar for the following purposes and for other purposes as shall be agreed between the Customer and Logicar or required by law from time to time: provision of Goods and/or Services; marketing of Goods and/or Services by Logicar, its agents or distributors in relation to the Goods and Services; analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods or Services; processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods and Services.
Logicar may give, information about the Customer to a credit reporting agency to obtain a consumer credit report about the Customer; and/or allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
PPSA and PMSI
You agree to do anything that Logicar reasonably requires to ensure that Logicar has at all times a continuously perfected security interest over all of your present and after-acquired property for the purposes of the PPSA.
Logicar may allocate amounts received from you in any manner it determines, but in default will apply same first to payment of any unsecured amount owing to Logicar, next as to any reasonable enforcement expenses and then as to any secured balance owing to Logicar.
You agree to reimburse Logicar for all costs and/or expenses incurred or payable by Logicar in relation to registering, maintaining or releasing any financing statement or financing change statement under this Agreement.
You will not, except with the written consent of Logicar, allow to be, or be liable to become, perfected or attached in favour of any person, a security interest or transitional security interest in any of the monies from time to payable to Logicar (if any) or otherwise and whether to a provider of new value or otherwise.
You will not, as against any person who is a “related entity” of you for the purposes of the Corporations Act 2001, without the prior written consent of Logicar, before or until all money payable to Logicar in connection with the Agreement is paid in full: exercise a right of contribution or indemnity; claim the benefit of, for example, by subrogation, or seek priority ahead of, the transfer of or the benefit of a security Logicar holds in connection with this Agreement; try to reduce its liability to Logicar through set off or counterclaim; or prove in competition with Logicar if you are unable to pay your debts when due; seek to perfect or attach in favour of you or another (either jointly or severally) a security interest in any of your present or after acquired property which would rank in priority to the entitlements of Logicar.
You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under this Agreement.
You agree that you and Logicar contract out of and nothing in the provisions of Sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA shall apply to this Agreement.
You and Logicar acknowledge that you are the grantor and Logicar is the holder of a Purchase Money Security Interest (“PMSI”) by virtue of this Agreement and/ or the PPSA.
You and Logicar agree that the terms of this Agreement may be altered unilaterally by Logicar giving thirty (30) days written notice to you. Clerical errors are subject to correction without notification.
You hereby consent and appoint Logicar to be an interested person and your authorized representative for the purposes of section 275(9) PPSA.
If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
All Goods and/or Services supplied by Logicar are subject to the laws of Victoria and Logicar takes no responsibility for changes in the law which affect the Goods supplied.
Logicar shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Logicar of these terms and conditions.
Subject to relevant PPSA compliance, unless consented to in writing by Logicar, the Customer and Logicar acknowledge that these terms and conditions constitute the entire agreement between them and that the only enforceable obligations and liabilities of the Customer and Logicar in relation to its subject matter. All representations, communications and prior agreements are superseded by these terms and conditions. Where previous terms and conditions have been entered into between the Customer and Logicar, the parties agree that this Agreement shall not act as a merger of their rights but that the terms contained under such previous Agreement shall be amended by the terms contained herein to the extent of any inconsistency.
You hereby agree that any notice by one party to the other shall be sufficiently served if served personally or by facsimile transmission or if posted by prepaid post to the party to be served at the registered office of such party or its last known place of business and shall be deemed to have been received within two (2) days of the date of posting if served by post and immediately upon transmission if served by facsimile transmission, and that in addition to any other means permitted by law, any documents, notifications or court proceedings may be given or served upon you, your successors and permitted assignees in the same manner as any notice or document may be given under Part 8.5 of the PPSA and shall be deemed so given or served.