Terms and Conditions
Terms and Conditions
1. AGREEMENT
1.1 This document sets out LPA TECH’s terms for providing the goods (including software) to you (Client). This agreement applies to any provision of Goods by LPA TECH to Client.
1.2 This agreement will commence upon the date the first purchase order is submitted by you and accepted by LPA TECH or upon the date the first Goods are shipped or provided by LPA TECH to you whichever is the earlier date.
1.3 This agreement applies to the provision of the Goods to the exclusion of any other terms.
1.4 LPA TECH may, in its sole discretion, assign or novate any or all of its rights and obligations under this Contract to a related body corporate and Client irrevocably consents to such assignment or novation.
2. PROVISION OF GOODS
2.1 Client acknowledges that times or dates identified by LPA TECH or the provision and delivery of the Goods are estimates only and LPA TECH will not be liable for any delays.
2.2 Unless otherwise agreed in writing, Client must satisfy itself that Goods are suitable for any purpose other than those described in the documentation provided by LPA TECH for those Goods.
2.3 All Goods provided by LPA TECH will be dispatched and made available for collection at LPA TECH’s manufacturing facility or warehouse (i.e.EXW, Ex Works).
2.4 LPA TECH may, if requested by Client in its purchase order and at Client’s expense, deliver the Goods to a specified delivery location (Site). Such expense referred to herein shall be included in the Price as defined in clause 4.
3. SITE PREPARATION
3.1 If Goods are to be delivered to Site pursuant to clause 2.4, Client must at its cost prepare the Site to which Goods are to be provided and provide LPA TECH with reasonable access to the Site.
3.2 If LPA TECH is delayed in providing any Goods due to failure of Client to prepare the Site or provide information: (i) Client will be liable to LPA TECH for all costs and expenses incurred by LPA TECH directly or indirectly as a result of such delay; and (ii) the time for performance of LPA TECH’s obligations under this agreement will be extended by the amount of any such delay.
4. PRICE AND PAYMENT
4.1 Client must pay the price identified by LPA TECH for the Goods (Price) in accordance with the timetable for payment of the Price identified by LPA TECH (Payment Schedule). If there is no Payment Schedule or other terms of payment identified by LPA TECH, Client must pay the Price as invoiced by LPA TECH within 30 days from the date of issue of an invoice. If Client fails to pay any sum due under this agreement by the due date, Client must pay interest of 2% per month on that sum from the due date until the date of payment. Interest is to be calculated on a daily basis.
4.2 If LPA TECH provides any additional goods or services, LPA TECH may charge Client for: (i) the time of LPA TECH employees, agents or subcontractors at LPA TECH’s then current professional rates for services; and (ii) the goods provided.
4.3 LPA TECH reserves the right to charge Client any costs related to delivering the Goods to Client’s premises or Client’s customer’s premises.
4.4 LPA TECH reserves the right to increase the prices contained in its price lists from time to time. If practical, LPA TECH will give 30 days notice of such change.
5. RISK AND TITLE
5.1 Risk of any loss or damage to Goods passes to Client at the time of dispatch or, if delivered by LPA TECH, on arrival to Site and title in each item of Goods remains with LPA TECH until the amount owed by Client to LPA TECH for that item of Goods has been paid in full.
5.2 Title to and property in the Goods will not pass until Client has paid all money owed to LPA TECH on any account whatsoever. Payments shall not be taken to occur until all electronic payments or cheques owing to LPA TECH have been paid and cleared in full.
5.3 If Client does not pay for any Goods on the due date for payment, Client authorises LPA TECH, its employees and agents to enter any location where the Goods are located, to retake possession of the Goods without liability for trespass or damage. Without limiting its rights under this clause, LPA TECH may also repossess the Goods supplied if: (i) Client fails to perform any obligation it has under this (or any other) agreement between it and LPA TECH; (ii) any representation or statement made or taken to be made by Client in this agreement or any other document delivered by or on behalf of Client under or in connection with this agreement is or proves to have been incorrect or misleading in any material respect when made or taken to be made; (iii) 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 LPA TECH’s opinion, has a material adverse effect on either business or financial condition of Client, Client’s ability to comply with its obligations under this agreement or the validity or enforceability of LPA TECH’s rights related to this agreement.
5.4 This agreement creates a purchase money security interest in the Goods and Client must do all things reasonably required by LPA TECH to register and perfect that interest. If LPA TECH repossesses the Goods: (i) LPA TECH will credit an amount equal to the invoiced purchase price of the Goods to Client, less LPA TECH’s costs and expenses related to enforcement of its interest in the Goods and any other amount owed by Client to LPA TECH; (ii) Client must not redeem the Goods; and (iii) LPA TECH does not need to provide Client with any notice under sections 130 or 135 of the Personal Property Securities Act 2009 (Cth). Until Client has paid all monies owed to LPA TECH on any account whatsoever, the relationship of Client to LPA TECH will be as a fiduciary in respect of the Goods and accordingly: (i) Client must store the Goods in such a way that they can be recognised as the property of LPA TECH; (ii) upon resale of the Goods by Client, LPA TECH shall have the right to trace the full proceeds of sale; and (iii) Client shall account immediately to LPA TECH for such proceeds of sale and LPA TECH may recover from such proceeds of sale any money then owing to LPA TECH on any account whatsoever.
6. INTELLECTUAL PROPERTY
6.1 LPA TECH remains the owner of any intellectual property rights created in connection with the provision of the Goods.
6.2 LPA TECH grants to Client a permanent, irrevocable, non-transferable licence to use any intellectual property rights created in connection with the provision of the Goods strictly for the purposes contemplated in the documentation provided by LPA TECH together with and for such Goods. This licence is subject to any other purpose identified by LPA TECH and payment of the Price, and all other monies owed by Client to LPA TECH, in full.
6.3 If LPA TECH provides Client with any proprietary software, Client acknowledges that separate terms provided by LPA TECH, will apply to the licensing and support of that software. The terms provided with any third party software or otherwise by LPA TECH, will apply to the licensing and support of any third party software.
7. WARRANTIES
7.1 Use of Goods
7.1.1 Client’s use of Goods, other than in accordance with the manufacturer’s specifications for the Goods, is at Client’s sole risk.
7.2 Proprietary LPA TECH Goods – this clause 7.2 applies to proprietary LPA TECH Goods
7.2.1 The Goods are considered under warranty if the period of time that has passed since you purchased the product is less than the period for which the product could be reasonably expected to remain defect-free.
7.2.2 The cost of replacement or repair of Goods is limited to the Price of the Goods only. For the purpose of this sub-clause, LPA TECH is not responsible for the cost of retrieving, removing, reinstalling, transporting or re-testing the Goods.
7.3 Repaired and replaced proprietary LPA TECH Goods
7.3.1 LPA TECH warrants that repairs to Goods will be executed using due care and skill within normal business hours.
7.3.2 Any component replaced under warranty retains the balance of the original warranty period.
7.4 Repaired and replaced non-proprietary goods
7.4.1 Client agrees that any warranty on non-proprietary LPA TECH Goods is limited to the warranty given by the manufacturer of those Goods and, to the maximum extent permitted by law, LPA TECH gives no additional warranties in relation to any non-proprietary LPA TECH Goods.
7.4.2 LPA TECH has no risk or responsibility for supply of defective non-proprietary LPA TECH Goods or for services performed by third parties, including without limitation, third party system integrators.
7.4.3 If the Australian Consumer Law applies, our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Client is 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.
7.5 Obligations
7.5.1 LPA TECH’s obligations under clauses 7.2, 7.3 and 7.4 do not apply if the defect arises out of any alteration to or modification of proprietary LPA TECH Goods, that is made by Client or any other person without LPA TECH’s prior written consent.
7.5.2 Except for those terms that cannot by law be excluded, all other terms that might be implied into this agreement are excluded.
8. GOODS RETURNED FOR CREDIT AND CANCELLATION
8.1 Return of Goods and/or cancellations of Goods is only permitted by LPA TECH upon written request and subsequent approval by LPA TECH.
8.2 If the Client cancels or suspends any order of undelivered Goods, LPA TECH is entitled to charge the following cancellation fees: (a) if the item is a special order, there will be a restocking fee of 100% of LPA TECH’s quoted price; or(b) if the items is a normal stock item, there will be a restocking fee of 20%.
8.3 If the Client cancels or suspends any order of delivered Goods, LPA TECH is entitled to charge the following cancellation fees:
(a) if the item was a special order, there will be a restocking fee of 100%. of LPA TECH’s quoted price; or
(b) if the items is a normal stock item, there will be a restocking fee of 20% of LPA TECH’s quoted price.
(c) no return of items will be accepted after 3 months from date of invoice.
9. CONFIDENTIALITY
9.1 Each party agrees that all non-public or proprietary information relating to the business, technology or affairs of the other provided or disclosed under this agreement or during the preceding negotiations is confidential.
9.2 Except as required by law, neither party will use or disclose such confidential information to any third party without the prior written consent of the other.
9.3 Unless required by any legislation, rules of a stock exchange or other government regulation, no public announcement concerning this will be made without the prior consent of both parties.
10. DRAWINGS AND DOCUMENTATION
10.1 Client acknowledges that any drawings, specifications and plans provided to Client by LPA TECH and any statement, description, illustration or other information in LPA TECH’s 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.
10.2 LPA TECH may, if requested by Client and at Client’s expense, provide Client with certified drawings.
10.3 Client acknowledges that any drawings, specifications and plans provided to Client by LPA TECH remain the property of LPA TECH and constitute the confidential information of LPA TECH and that Client must not use them for any purpose other than in accordance with these terms nor disclose them to third parties.
10.4 If a tender, proposal or quotation is not completed, Client must return to LPA TECH any studies, drawings or other documents submitted with LPA TECH’s offer within 14 days of expiry of the tender, proposal or quotation.
10.5 Any performance figures stated in a tender, proposal or quotation are subject to the recognised tolerance and rejection limits applicable to those figures.
11. INSURANCE
11.1 LPA TECH is covered by insurance policies, which include public liability.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 Subject to clauses 7.4.3 and clause 12.2, LPA TECH’s total liability under this agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the Price.
12.2 To the extent that terms implied by law apply to the Goods, LPA TECH’s liability for any breach of those terms is limited to (i) re-supplying the Goods; (ii) repairing or replacing the Goods; or (iii) paying the costs of re-supply or repair of the Goods.
12.3 The client may be required, at LPA TECH’s absolute discretion, to pay any, all or part of LPA TECH’s costs and expenses, on an indemnity basis, related to registration and enforcement of any security interest related to this agreement or related to ensuring the payment of Client’s overdue debt, including but not limited to, commission and fees payable to a mercantile collection agency, solicitor or the like.
12.4 Notwithstanding any other term of the agreement, LPA TECH is not liable whether in contract, tort (including negligence) or otherwise for any loss of profit, consequential damage or loss of market, data, opportunity or contracts whether to people or property arising directly or indirectly pursuant to this agreement or the performance of the Services or supplying of Goods under this agreement.
12.5 LPA TECH’s 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 Client or any person (other than LPA TECH, its employees, agents or subcontractors) contributed to the loss or damage incurred.
12.6 LPA TECH will not be liable for damage or loss that is the consequence of: (i) incorrect or incomplete information supplied by Client; (ii) operational cessation; (iii) loss of data (Client must ensure that back-ups are made of programs and files and copies of other data that are made available by Client to LPA TECH); (iv) any shortcoming of Client in the performance of its obligations including the granting of full assistance in implementing this agreement;
or (v) any use by Client of Goods other than in accordance with the documentation provided by LPA TECH together with and for such Goods, except to the extent that LPA TECH expressly approves in writing such use.
12.7 Where damage or loss occurs as contemplated in clause 12.5 and such damage or loss leads to any claim by a third-party, Client indemnifies LPA TECH against any such claim.
12.8 No claim may be brought against LPA TECH where Client has the possibility in respect of the cause of the damage to claim directly against a third- party (a supplier of LPA TECH) or its insurer.
13. FORCE MAJEURE
13.1 A party will not be liable to the other if performance of its obligations to the other party is delayed, impeded or prevented by any act or event beyond the control of a party, whether foreseen or not, which delays, interrupts or prevents such party from performing its obligations under this agreement (Force Majeure).