Terms & Conditions

1. AGREEMENT
   • This agreement sets out the terms and conditions for the provision of goods (including software) (Goods) and/or services (Services) to you (Client) by L J Services Pty Ltd ACN 095 649 406 (LJ Services). This agreement applies to any provision of Goods and/or Services by LJ Services to the Client.
   • This agreement will commence from the date the first purchase order is submitted by the Client and accepted by LJ Services, or from the date the first Goods and/or Services are shipped or provided by LJ Services to the Client, whichever is the earlier date.
   • This agreement applies to the provision of Goods and Services by LJ Services to the Client to the exclusion of any other terms (including, without limitation, the Client’s terms and conditions, whether included in a purchase order or otherwise).
   • LJ Services may, in its sole discretion, assign or novate any or all of its rights and obligations under this contract to a related body corporate (as defined under the Corporations Act 2001 (Cth)) and the Client irrevocably consents to such assignment or novation.
   • This agreement may be amended or replaced from time to time. LJ Services will notify the Client of any amendment. An amendment will take effect from the time that it appears on the LJ Services website, or such later date as LJ Services may notify the Client.  The Client will be taken to have accepted this agreement (as amended from time to time) by continuing to place orders for Goods and/or Services with LJ Services.

 

2. PROVISIONS OF GOODS AND/OR SERVICES
   • The Client acknowledges that times and dates identified by LJ Services for provision of the Services and the delivery of the Goods are estimates only and LJ Services will not be liable for any delays.
   • Any drawings, specifications, or plans identified by LJ Services as requiring the Client’s approval shall be approved or commented on in writing by the Client within five (5) working days after the receipt of such drawings, specifications, or plans. If the Client does not respond within that period (or such other period identified by LJ Services), the Client will be deemed to have approved the drawings, specifications, or plans, as the case may be.
   • LJ Services makes no representation or warranty regarding the suitability of the Goods and/or Services for any purpose other than those purposes described in the documentation provided by LJ Services in connection with the supply of those Goods and/or Services.
   • Subject to Clause 2.5, all Goods provided by LJ Services will be dispatched and made available for collection at LJ Services’ manufacturing facility or warehouse.
   • LJ Services may, if requested by the Client in its purchase order, and at the Client’s expense, deliver the Goods and/or Services to a specified delivery location (Site).
3. SITE PREPARATION
   • Pursuant to Clause 2.5, if Goods and/or Services are to be delivered to a Site, the Client must, at its own cost, prepare the Site for receipt of the Goods and/or Services and provide LJ Services with reasonable access to the Site and other facilities (including adequate power, telephone, facsimile, email and office space, if requested by LJ Services) to allow LJ Services to provide the Goods and/or Services under this agreement.
   • If LJ Services is delayed in providing any Goods and/or Services due to a failure by the Client to prepare the Site or provide relevant information to LJ Services:(i) the Client will be liable to LJ Services for all costs and expenses incurred by LJ Services directly or indirectly as a result of such delay; and (ii) the time for delivery of the Goods and/or Services under this agreement will be extended by the amount of any such delay.

 

4. PRICE AND PAYMENT
   • The Client must pay the price identified by LJ Services for the Goods and/or Services (Price) in accordance with the payment schedule identified by LJ Services (Payment Schedule). If there is no Payment Schedule or other terms of payment identified by LJ Services, the Client must pay the Price as invoiced by LJ Services within 30 days from the end of the month in which the Goods and/or Services are received by the Client.  If the Client fails to pay any sum due under this agreement (Unpaid Sum) by the due date, the Client must pay a monthly interest fee of 2% of the Unpaid Sum from the due date until the date of payment. Interest is to be calculated on a daily basis.
   • If LJ Services provides any additional Goods or Services, LJ Services may charge the Client for: (i) in the case of Goods, the Goods provided, and (ii) in the case of Services, the time spent by LJ Services’ employees, agents or subcontractors in providing those Services at their current professional rates for Services.
   • Payment shall not be taken to have occurred until all cheques and other forms of payment tendered in discharge of sums owing by the Client to LJ Services have been cleared in full.

 

5. RISK AND TITLE
   • Risk of any loss or damage to Goods passes to the Client at the time of dispatch or, if delivered by LJ Services, on arrival at the Site.
   • Title to and property in Goods supplied by LJ Services to the Client will remain with LJ Services and will not pass to the Client until the Client has paid to LJ Services the Price of those Goods in full, and all other money owed by the Client to LJ Services from time to time on any account whatsoever.
   • Without limiting any other rights LJ Services may have at law or under this agreement, the Client authorises LJ Services, its employees and agents to (and LJ Services, its employees or agents may) enter any location where Goods the title to which has not passed to the Client under clause 5.2 (Relevant Goods) are located and retake possession of the Relevant Goods and re-sell any or all of them without liability for trespass or damage, if: (i) the Client fails to pay the Price of any Goods supplied by LJ Services, or any other amount payable to LJ Services, when it is due and payable; or (ii) the Client fails to perform any other obligation it has under this (or any other) agreement between it and LJ Services, and (if the failure is capable of rectification) the Client does not rectify the failure within thirty (30) days of receipt of a written notice from LJ Services requesting such rectification; (ii) any representation or statement made or taken to be made by the Client in this agreement or any other document delivered by or on behalf of the Client under or in connection with this agreement proves to have been incorrect or misleading in any material respect when made, and that has a material adverse effect on LJ Services; (iii) the Client is wound up, bankrupted or insolvent, or any person enforces or seeks to enforce any security interest in respect of any of the assets of Client; or (iv) anything else happens which, in LJ Services’ reasonable opinion, has a material adverse effect on the Client’s ability to comply with its obligations under this agreement or the validity or enforceability of LJ Services’ rights under this agreement.
   • This clause 5 creates a security interest (including a purchase money security interest) in the Goods and their “proceeds” (as defined in the Personal Property Securities Act 2009 (Cth) (PPSA)), and the Client must do all things reasonably required by LJ Service’s to register and perfect that interest. If LJ Services repossesses and/or re-sells the Goods: (i) LJ Services will credit an amount equal to the invoiced Price of the Goods to the Client, less LJ Services’ costs and expenses related to enforcement of its security interest in the Goods and any other amount owed by the Client to LJ Services; and (ii) LJ Services is not required to provide the Client with any notice under sections 130 or 135 of the PPSA.  Until the Client has paid all monies owed to LJ Services on any account whatsoever, the relationship of the Client to LJ Services will be one of fiduciary in respect of the Goods and accordingly: (i) the Client must store the Goods in such a way that they can be recognised as the property of LJ Services; (ii) upon resale of the Goods by the Client, LJ Services shall have the right to trace the full proceeds of sale; and (iii) the Client shall account immediately to LJ Services for such proceeds of sale and LJ Services may recover from such proceeds of sale any money then owing to LJ Services by the Client on any account whatsoever.  The Client waives its rights under sections 157(1) and 157(3) of the PPSA, to the extent that is permitted by law.

 

6. INTELLECTUAL PROPERTY
   • LJ Services remains the owner of any intellectual property rights created in connection with the provision of the Goods and/or Services.
   • LJ Services grants to the Client a permanent, irrevocable, non-transferable licence to use any intellectual property rights created in connection with the provision of the Goods and/or Services strictly for the purposes for which the Goods and/or Services were supplied. This licence is subject to payment of the Price, and all other monies owed by Client to LJ Services, in full.
   • If LJ Services provides the Client with any proprietary software, the Client acknowledges that separate terms provided by LJ Services will apply to the licensing and support of that software. The terms provided with any third party software supplied by LJ Services, will apply to the licensing and support of that third party software.

 

7. WARRANTIES
   • Subject to this clause 7, LJ Services warrants that:
     • All Goods supplied by LJ Services (excluding software supplied by LJ Services (LJS Software) and products sourced by LJ Services from third parties (Third Party Products)) will operate in accordance with their published specifications for the duration of the Warranty Period; and
     • All Services (excluding LJS Software) will be performed in a professional manner with due skill and care, using appropriately skilled and qualified personnel and in accordance with all applicable laws and regulations; and
     • All LJS Software will perform in accordance with its published specifications during the Warranty Period.
   • If the Client makes a claim during the Warranty Period it will be handled as follows:
     • In the case of Goods which do not operated as warranted under clause 7.1.1, excluding any such Goods which are covered by clause 7.2.2 (Defective Goods), LJ Services will replace or repair (at its discretion and cost) the Defective Goods and will warrant the replacement Goods or repaired Defective Goods (as applicable) on the same terms as clause 7.1.1 for the balance of the original Warranty Period which applied to the Defective Goods. LJ Services will not be responsible for the cost of retrieving, removing, reinstalling, retesting or transporting the Defective Goods to and from the location where the Defective Goods are located.
     • In the case of Services which are not performed as warranted under clause 7.1.2 (Defective Services), LJ Services will re-perform the Defective Services. In the event the Defective Services have caused a defect in any Goods supplied by LJ Services, LJ Services will replace or repair (at its discretion and cost) those Goods, and the cost to LJ Services of doing so will be limited to: (i) the cost of repair or replacement of the those Goods (including transport to and from the location where those Goods are located); (ii) on-site servicing labour costs in the case of having to re-perform installation Services in relation to those Goods; and (iii) LJ Services’ travel costs (transport and accommodation).  This clause 7.2.2 will not apply where the original Services were provided on a time and material basis.
   • The Client agrees that, unless otherwise agreed in writing by LJ Services, to the maximum extent permitted by law, the only warranty applicable to any Third Party Products supplied by LJ Services is limited to the warranty (if any) given by the manufacturer of those Third Party Products, and LJ Services gives no warranties in relation to any Third Party Products supplied by LJ Services.
   • LJ Services will not be responsible for any defect in Goods or Services arising out of or in connection with:
     • misuse, abuse, neglect, errors, or any other act or omission of or by the Client or any third party not contracted by LJ Services (other than any act or omission which constitutes, or is consistent with, the proper use and enjoyment of the relevant Goods or Services);
     • alteration (improper or otherwise) or installation of the Goods by the Client or any person other than LJ Services; or
     • power failure, power surge, lightning, flood, fire, accidental breakage or other events outside of LJ Services’ reasonable control; or
     • the Goods not being maintained, installed or energised in accordance with LJ Services’ instructions or in the absence of such instructions, in accordance with generally accepted practices for the maintenance of such Goods; or
     • improper environmental or storage conditions where the Goods are used or installed.
   • If the Client is taken to have acquired any Goods or Services as a “consumer” for the purposes of the Australian Consumer Law, then the statements set out in clauses 7.5.1 and 7.5.2 apply to those Goods or Services (where “our” and “us” refer to LJ Services, and “you” and “your” refer to the Client, as applicable):
     • The warranties in this clause 7 are provided in addition to any other rights and remedies the Client is entitled to under law (including the Australian Consumer Law).
     • “Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:

(a)             to cancel your Service contract with us; and

(b)             to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or a Service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Goods and to cancel the contract for the Service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Service”.

For the purposes of this clause 7.5, “Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

• For the purposes of this clause 7, Warranty Period shall mean:
  • for Goods in respect of which a warranty period is specified in LJ Services’ Product and Services Catalogue: that warranty period, commencing on the date of delivery of those Goods to the Client; and
  • for all other Goods: the earlier of: (i) eighteen (18) months from the delivery date; and (ii) the date that is twelve (12) months from the date on which commercial or operational use of the Goods by the Client first begins; and
  • for all Services: a period of ninety (90) days from the date of delivery of the Services; and
  • for all LJS Software: a period of ninety (90) days from the date of delivery of the LJS Software.
• The warranties set out in this clause 7 are given by, and all claims under those warranties may be made to, L J Services Pty Ltd ACN 095 649 406 of 158 Christmas Street, Fairfield, Victoria 3078 (Telephone: (03) 8415 1324; Email: info@ljservices.com.au).

 

8. GOODS RETURNED FOR CREDIT AND CANCELLATION
   • The return of Goods or cancellation of orders for Goods and/or Services is only permitted by LJ Services in accordance with its policies (available on request) for returns and cancellations.
   • If the Client cancels or suspends any order of undelivered Goods without LJ Services’ prior written consent, LJ Services is entitled to charge the following cancellation fees:
     • where the Goods are listed in LJ Services’ current Australian catalogue or price list for the time being as stock items, a cancellation fee of 15% of the Price;
     • where the Goods are listed in LJ Services’ current Australian catalogue or price list for the time being as non-stock items, a cancellation fee of 100% of the Price;
     • where the Goods are not listed in LJ Services’ current Australian catalogue or price list for the time being, a cancellation fee of 100% of the Price; or
     • where the Goods are manufactured by LJ Services, LJ Services is entitled to: (i) all cancellation costs associated with the return of any components of the Goods to LJ Services’ suppliers; and (ii) where manufacture of the Goods has commenced, all direct labour costs associated with work performed up to the date of cancellation and the labour cost to dismantle components which are to be returned to suppliers; and (iii) a charge of 25% of Price for recovery of administration and design costs, overhead recovery and loss of profit.

 

9. CONFIDENTIAL INFORMATION AND PUBLICITY
   • Each party agrees that all confidential information and proprietary information relating to the business, technology or affairs of the other party, except for any such information which is generally available to the public at the time of disclosure or subsequently becomes so available, in each case other than by reason of a breach of this agreement or any breach of confidence (Confidential Information) provided or disclosed under or in connection with this agreement or during the preceding negotiations is confidential.
   • Except as required by law, neither party will use or disclose the Confidential Information of the other party to any third party without the prior written consent of the other party, provided that a party may disclose the other party’s Confidential Information to any related body corporate, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the first-mentioned party (each a Recipient), but only if the disclosure is made to the Recipient strictly on a “need to know basis” and on the basis that the relevant Confidential Information is to be kept confidential in accordance with this clause 9.
   • Except to the extent required to comply with any applicable legislation, rules of a stock exchange or other government regulation, no public announcement concerning this agreement will be made by either party without the prior consent of the other party.

 

10. DRAWING AND DOCUMENTATION
    • The Client acknowledges that any drawings, specifications and/or plans provided to the Client by LJ Services and any statement, description, illustration or other information in LJ Services’ catalogues, websites, price lists and other advertising matter are intended merely to give a general idea of the Goods and/or Services and will not, unless otherwise agreed in writing, form any part of this agreement.
    • LJ Services may, if required by the Client and at the Client’s expense, provide the Client with certified drawings.
    • The Client acknowledges that any drawings, specifications and/or plans provided to the Client by LJ Services constitute confidential information of LJ Services and that the Client must not use them for any purpose other than in accordance with this agreement nor disclose them to any third parties.
    • If a tender, proposal or quotation submitted by LJ Services to the Client is not accepted or completed, the Client must return to LJ Services any studies, drawings or other documents submitted with LJ Services’ tender, proposal or quotation within 14 days of expiry of the tender, proposal or quotation.
    • Any performance figures stated in a tender, proposal or quotation submitted by LJ Services are subject to the recognised tolerance and rejection limits applicable to those figures.

 

11. INSURANCE
    • LJ Services is and is covered by insurance policies including public and product liability and professional indemnity insurances.

 

12. LIMITATION OF LIABILITY AND INDEMNITY
    • Subject to clauses 7.5 and 12.2, to the maximum extent permitted by law, LJ Services’ total liability under this agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the Price of the Goods and Services supplied or to be supplied under this agreement.
    • Except for the warranties provided under clause 7, LJ Services excludes all warranties and guarantees in connection with Goods and/or Services supplied to the Client (including, without limitation, all conditions and warranties implied by custom, the general law or statute), other than those which may not be excluded under the Competition and Consumer Act 2010 (Cth) or other relevant legislation. LJ Services’ liability under any guarantee, condition or warranty implied or stipulated by the Competition and Consumer Act 2010 (Cth) or similar legislative provision which may not be excluded but may be limited, is limited (at LJ Services’ option) to:
      • in the case of Goods:

(a)             the replacement of the Goods or the supply of equivalent goods;

(b)             the repair of Goods; or

(c)             the refund of the Price paid by the Client for Goods; or

• in the case of Services:

(a)             the supply by LJ Services of the Services again; or

(b)             the refund of the Price paid the Client for the Services.

• The Client may be required, at LJ Services absolute discretion, to pay any, all, or part of LJ Services’ costs and expenses, on an indemnity basis, related to the registration and enforcement of any security interest arising under this agreement or related to ensuring the payment of the Client’s overdue debt, including but not limited to commission and fees payable to a mercantile collection agency, solicitor or the like.
• Notwithstanding any other term of this agreement, LJ Services is not liable whether in contract, tort (including negligence) or otherwise for any loss of profit, consequential loss, loss of market, data, opportunity or contracts whether arising directly or indirectly pursuant to this agreement or the performance of the Services or supply of Goods under this agreement, except for any such liability which may not be excluded by force of the Competition and Consumer Act 2010 (Cth) or similar legislative provision.
• LJ Services’ liability for any loss or damage arising as a consequence of a breach of this agreement is reduced proportionally to the extent the act or omission (deliberate or negligent) of the Client or any person (other than LJ Services, its employees, agents or subcontractors) contributed to the loss or damage.
• LJ Services will not be liable for damage or loss that is the consequence of (i) incorrect or incomplete information supplied by the Client; (ii) operational cessation by the Client, (iii) loss of data (the Client must ensure that back-ups are made of programs, files, and other data made available by the Client to LJ Services); (iv) any failure by the Client in the performance of its obligations under this agreement; or (v) any use by the Client of the Goods other than in accordance with the documentation provided by LJ Services for such Goods, except to the extent that LJ Services expressly approves such other use in writing.
• Where damage or loss occurs as a contemplated in clause 12.6 and such damage or loss leads to any claim against LJ Services by a third party, the Client indemnifies LJ Services against that claim.
• To the maximum extent permitted by law, no claim for any loss, cost, damage, expense or liability may be brought against LJ Services where the Client has the right to claim directly against a third party (such as a supplier to LJ Services) or an insurer in respect of that loss, cost, damage, expense or liability.

 

13. MODERN SLAVERY
    • In performing its obligations under this agreement, LJ Services must, and must ensure that its personnel and suppliers:
      • comply with all applicable modern slavery laws from time to time in force, including but not limited to the Modern Slavery Act 2018 (Cth) (Modern Slavery Laws); and
      • do not, engage in any activity, practice or conduct that would constitute an offence under Division 270 or Division 271 of the Schedule to the Criminal Code Act 1995 (Cth) if such activity, practice or conduct were carried out in Australia.
    • LJ Services warrants that neither it nor any of its directors:
      • has been convicted of any offence under any Modern Slavery Laws; and
      • to the best of LJ Services’ knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any government agency regarding any offence or alleged offence under any Modern Slavery Laws.

 

14. FORCE MAJEURE
    • A party will not be liable to the other party if performance of any of its obligations to the other party (other than an obligation to pay money) is delayed, impeded or prevented by any act or event beyond the reasonable control of the first-mentioned party, whether foreseen or not, which delays, interrupts or prevents the first-mentioned party from performing its obligations under this Agreement, other than an obligation to pay money (Force Majeure).
    • If delay in the performance of this Agreement (other than an obligation to pay money) by a party due to Force Majeure continues for more than 1 month, either party may terminate this Agreement by written notice to the other.

 

15. SUSPENSION AND TERMINATION
    • If the Client fails to pay any sum due under this agreement by the due date, LJ Services may by written notice to the Client, in addition to its other rights under this agreement, suspend providing the Goods and/or Services, until all overdue amounts are paid in full.
    • A party may terminate this Agreement by providing written notice to the other party where the other party is in breach of any of the terms of this agreement which is capable of remedy and fails to rectify the breach within thirty (30) days of the receipt of a written notice from the first-mentioned party requesting such rectification.

 

 

16. MISCELLANEOUS
    • Any variations to this agreement must be in writing executed by both parties.
    • The Client must not, during the term of this agreement and for 6 months after termination or expiry of this agreement, solicit or engage LJ Services’ employees, agents or contractors that have been employed or engaged in relation to the Goods and/or Services.
    • Nothing contained or implied in this agreement is to be construed as creating a relationship of partnership, agency, or of trustee and beneficiary between the parties.
    • Neither party has any authority to bind the other party to any obligation.
    • Each and every obligation contained in this agreement will be treated as a separate obligation and will be severally enforceable notwithstanding the non-enforceability of any other such obligation.
    • In this agreement, a reference to a thing is a reference to the whole thing and to a part of the thing.

15.8          This agreement is governed by the laws applicable in the State of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria.