LCM Air Conditioning Terms and Conditions of Trade
1. Definitions
1.1. “LCM” means LCM Air Conditioning Pty Ltd T/A LCM Air Conditioning its successor and assigns or any person acting on behalf of and with the authority of LCM Air Conditioning Pty Ltd.
1.2. “Client” means the person/s paying for the Works as specified in any invoice, document, quotation, work authorisation or other document, and if the Client is made up of one or more persons, the Client is a reference to each Client jointly and severally.
1.3. “Works” means all goods and/or services supplied by LCM to the Client at the Client’s request more particularly described in LCM’s quotation or invoice.
1.4. “Price” means the price payable for the Works as agreed between LCM and the Client in accordance with clause 4 of this contract.
1.5. “Warranty Period” in the case of LCM’s workmanship means the warranty period stated in the quotation or invoice commencing from the date of commission, or in the case of goods not manufactured by LCM, shall be the warranty period provided by the manufacturer of the goods.
2. Acceptance
2.1. Any instructions received by LCM from the Client for the acceptance of LCM’s quotation or to proceed with the Works shall constitute acceptance of these terms and conditions.
2.2. These terms and conditions may only be amended with LCM’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and LCM.
2.3. At LCM’s sole discretion, LCM may withdraw the quotation or offer to perform Works any time before it is accepted by the Client without incurring any liability to the Client.
3. Time, Progress & Access
3.1. LCM will endeavor to meet all reasonable timeframes and deadlines notified in writing to LCM but unless specifically agreed to in writing, LCM will not be liable for any costs, claims or damages (including liquidated damages) as a result of a delay in completing the Works.
3.2. LCM must have unhindered and uninterrupted access to the site to enable LCM to carry out the Works. The Client must provide LCM with reasonable prior notice of access or unavailability of access, as the case may be. LCM reserves the right to charge a variation in the situation where reasonable notice was not given and LCM incurred costs.
3.3. For Works that are completed in stages (e.g. rough-in of pipes and cables or installation of part of the Works) if any part of the Works are damaged by third persons, whether authorized by the Client or not, resulting in additional work by LCM, then LCM will vary the Price in accordance with Clause 5.
3.4. Upon completion of the Works, it may be necessary to carry out commissioning works and operational tests requiring electrical power. If electrical power is not available at this time and an additional site visit to do these works is required, then LCM may charge a variation in accordance with Clause 5.
4. Price and Payment
4.1. At LCM’s sole discretion the Price shall be either:
a) As indicated on invoices provided by LCM to the Client in respect of the Works; or
b) the quoted Price (subject to clause 4.2) in LCM’s quotation or other written confirmation of Works which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2. LCM reserves the right to change the Price in the event of a variation or additional Works requested by the Client, calculated in accordance with Clause 5.
4.3. At LCM’s sole discretion a non-refundable deposit may be required and/or LCM may claim progress payments.
4.4. Time for payment for the Works shall be of the essence and the Price will be payable by the Client on the date/s determined by LCM, which may be:
a) upon completion of the Works;
b) a deposit before ordering equipment and materials in order to complete the Works;
c) by way of progress payments;
d) thirty (30) days following the end of the month for account for Clients who have successfully applied for a credit account with LCM;
e) the date specified on any invoice or other form as being the date for payment; or
f) if no time is stated then seven (7) days following the date of any invoice given to the Client by LCM.
4.5. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or credit card or by any other method as agreed to between the Client and LCM.
4.6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.7. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by LCM.
5. Variations & Cancellations
5.1. The Works will be performed as per LCM’s quotation and/or other written confirmation of the Works (except for reasonable substitution made at LCM’s discretion).
5.2. Where possible, the Price for a variation or omissions to the Works shall be quoted and accepted by the Client before proceeding with the Works. If the Client requests LCM to vary or omit any of the Works without prior agreement to the Price, then LCM shall calculate the Price of the variation or omission by reference to LCM’s usual schedule of rates, material costs and other reasonable expenses incurred and the Client shall pay LCM’s Price for the variation or omission.
5.3. If LCM is required to perform additional work due to unforeseen circumstances or site conditions not reasonably anticipated at the time of providing the quotation, including but not limited to any variation as a result of poor weather conditions, access to the site is hindered and/or interrupted, safety considerations or prerequisite work by any third party not being completed, then LCM may make variations or omissions to the Works in accordance with this Clause 5.
5.4. The Client must notify LCM in writing of any cancellation of Works including variations as soon as possible before the Works are commenced. Cancellation of Works may be subject to a charge; including pro rata of the Price for the Works completed to date, and/or any unrecoverable costs incurred related to the materials ordered specifically for the Client’s job, and/or any restocking fees, and/or any third party charges incurred specifically for the Client’s job.
6. Title & Risk
6.1. Legal and equitable title in the goods supplied as part of the Works shall not pass to the Client until the Client has paid LCM in full for the Works, and the Client has met all obligations under these terms and conditions.
6.2. Until ownership of the goods passes to the Client in accordance with this Clause 6, then the Client:
a) is only a Bailee of the goods and must return the goods to LCM on request;
b) holds the benefit of the Client’s insurance of the goods on trust for LCM and must pay to LCM the proceeds of any insurance in the event the goods are lost, damaged or destroyed;
c) must not sell, dispose, or otherwise part with possession of the goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the goods then the Client must hold the proceeds of any such act on trust for LCM and must pay or deliver the proceeds to LCM on demand.
6.3. If the Client fails to meet its obligations under these terms and conditions, including failure to pay the Price, then LCM is entitled without prejudice to any of its other rights and remedies, to recover the goods. The Client hereby irrevocably gives LCM permission and leave, without the necessity for notice, to enter onto and into any premises to search for the goods and repossess, disconnect or decommission any of the aforesaid goods. If the goods are wholly or partially attached to other goods or fixtures, LCM may without being liable to the Client, sever the attachment however necessary to remove and recover the goods.
6.4. Nothing in this clause shall affect LCM’s right to recover for any unpaid amount in an invoice as a debt, notwithstanding that ownership of the goods has not passed to the Client.
6.5. The risk in the goods supplied as part of the Works shall pass to the Client upon delivery to the Client or the client’s site, and the Client must insure the Works on or before delivery.
6.6. Where the Client is to supply LCM with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. LCM shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Client
6.7. Where LCM is required to carry out installation Works, the Client warrants that the structure of the premises or equipment in or upon which the Works are to be completed, is sound and will sustain the installation and work incidental thereto and LCM shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
6.8. LCM shall not be liable for any loss or damage to the Client’s premises (including, without limitation, pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of LCM.
7. Personal Property Securities Act 2009 (PPSA)
7.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
7.2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by LCM to the Client.
7.3. The Client undertakes to:
a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which LCM may reasonably require to;
i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 7.3(a)(i) or 7.3(a)(ii);
b) indemnify, and upon demand reimburse, LCM for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any goods charged thereby;
c) not register a financing change statement in respect of a security interest without the prior written consent of LCM;
d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the goods in favour of a third party without the prior written consent of LCM;
e) immediately advise LCM of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
7.4. LCM and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
7.5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
7.6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7.7. Unless otherwise agreed to in writing by LCM, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
7.8. The Client must unconditionally ratify any actions taken by LCM under clauses 7.3 to 7.5.
7.9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
8. Security and Charge
8.1. In consideration of LCM agreeing to carry out the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2. The Client indemnifies LCM from and against all LCM’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising LCM’s rights under this clause.
8.3. The Client irrevocably appoints LCM and each director of LCM as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Client’s behalf.
9. Default & Consequences of Default
9.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such the interest shall compound monthly at such a rate after as well as before any judgment.
9.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify LCM from and against all costs and disbursements incurred by LCM in recovering the debt including but not limited to internal administration fees, legal cost on a solicitor and own client basis, LCM’s collection agency costs and any bank dishonor fees.
9.3. Without prejudice to any other remedies LCM may have, if at any time the Client is in breach of any obligation (including those relating to payment), LCM may suspend or terminate the supply of Works to the Client and any of its other obligations under the terms and conditions. LCM will not be liable to the Client for any loss or damage the Client suffers because LCM has exercised its rights under this clause.
9.4. Without prejudice to LCMs other remedies at law LCM shall be entitled to cancel all or any part of the Works which remains unfulfilled and all amounts owing to LCM shall, whether or not due for payment, become immediately payable in the event that:
a) Any money payable to LCM becomes overdue, or in LCM’s opinion the Client will be unable to meet its payments as they fall due; or
b) The Client 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 creditor; or
c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
10. Defects , Warranty and Liability
10.1. The Client must inspect the Works upon completion and must notify LCM in writing with 2 business days of any evident defect/damage or failure to comply with the description or quote. Furthermore the Client must notify any other alleged defect in the Works as soon as reasonably possible after such defect becomes evident. Upon such notification the Client must allow LCM to inspect the Works.
10.2. LCM acknowledges that nothing in these terms and conditions purports to modify or exclude the implied guarantees and warranties which may be implied into these terms and conditions by the relevant Competition and Consumer legislation.
10.3. Subject to this Clause 10 and reasonable access being provided, LCM will rectify a defect notified within the Warranty Period as soon as possible during usual business hours.
10.4. For goods not manufactured by LCM, the warranty shall be the current warranty provided by the manufacturer of the goods. LCM shall not be bound by nor be responsible for any term, condition, representation or warranty which is given by the manufacturer of the Goods.
10.5. For Works completed by LCM, the Works are warranted against defects in workmanship and shall be limited to rectifying any defects or omissions in the Works notified during the stated Warranty Period. Any work undertaken by others on, or any sign of tampering with LCM’s workmanship will void LCM’s warranty.
10.6. LCM may charge a call out fee where LCM has responded to a Warranty request but there was no fault found or there is evidence of tampering, accidental damage, or vermin damage.
10.7. Subject to Clause 10.5, LCM shall not be liable to compensate or indemnify the Client for any loss or damage suffered or incurred by the Client in relation to the Works, including but not limited to any loss of profits or other economic loss or to loss arising from negligence or any tort in any case whether direct, indirect, consequential or otherwise.
10.8. In the event of any breach by LCM, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Works.
10.9. LCM will not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
a) The Client failing to properly maintain the goods ;
b) The Client using the goods for any purposes other than that for which they were designed;
c) The Client continuing the use of the goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
d) The Client failing to follow any instructions or guidelines provided by LCM;
e) Accidental damage, willful damage, vermin damage, wear and tear or act of God.
11. Intellectual Property
11.1. Where LCM has designed, drawn or written Works for the Client, then the copyright in those designs and drawings and documents shall remain vested in LCM, and shall only be used by the Client at LCM’s discretion.
11.2. The Client warrants that all designs or instructions to LCM will not cause LCM to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify LCM against any action taken by a third party against LCM in respect of any such infringement.
12. Privacy Act and Credit Reports
12.1. The Client agrees for LCM to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by LCM;
12.2. The Client agrees that LCM may:
a) obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by LCM; and
b) exchange information about the Client with those credit providers either names as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency,
for the purposes of assessing an application by the Client; and/or to notify other credit providers of a default by the Client; and/or to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or to assess the credit worthiness of Client.
12.3. The Client consents to LCM being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
12.4. The Client agrees that personal credit information provided may be used and retained by LCM for the following purposes (and for other purposes as shall be agreed between the Client and LCM or required by law from time to time):
a) the provision of Works; and/or
b) the marketing of Goods and/or Services by LCM, its agents or distributors; and/or
c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
12.5. LCM may give information about the Client to a credit reporting agency for the following purposes:
a) to obtain a consumer credit report about the Client;
b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
12.6. The information given to the credit reporting agency may include:
a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
b) details concerning the Client’s application for credit or commercial credit and the amount requested;
c) advice that LCM is a current credit provider to the Client;
d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
f) information that, in the opinion of LCM, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
h) that credit provided to the Client by LCM has been paid or otherwise discharged.
13. Building and Construction Industry Payments Act 2004 (BCIPA)
13.1. At LCM’s sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the BCIPA may apply.
13.2. Nothing in these terms and conditions is intended to have the affect of contracting out of any applicable provisions of the BCIPA, except to the extent permitted by the Act where applicable.
14. Promotions
14.1. LCM will use it best endeavors to advise Clients of any current Manufacturer’s Promotions (such as Cash Back or Bonus Offers) but the Client is responsible for enquiring about the eligibility, terms and conditions of the Promotion, and LCM will not be held liable if we fail to advise the Client of a current Promotion and/or if the Client is not for whatever reason eligible for the Promotion.
15. General
15.1. If any provision of these terms and conditions is deemed invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of courts of Queensland.
15.3. LCM may license or sub‐contract all or any part of its rights and obligations without the Client’s consent.
15.4. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock‐out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.5. The failure by LCM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect LCM’s right to subsequently enforce that provision.
15.6. LCM reserves the right to change, amend or alter in any way, these terms and conditions without notice to the Client.