15 Dec Terms & Conditions

Terms and Conditions

 

  1. Appointment
    • The Customer appoints Local Shed Solutions (“LSS”) to provide the Goods and services as outlined in an order submitted by the Customer to LSS (“the Purchase Order”), whether in a form prescribed by LSS, upon payment of a deposit by the Customer, or otherwise agreed to between the parties and LSS shall provide the Goods and Services for the Fee as outlined in the Purchase Order (“the Agreement”).
    • LSS reserves the right, at its sole discretion, to make any amendments to these Terms and Conditions (“the Terms”) at any time, and for any reason. LSS will alert the Customer about any changes by updating the date of the Terms and the Customer waives any right to receive specific notification of each such change.
    • The current version of these Terms may be accessed at localshedsolutions.com.au/

 

  1. Access and site requirements

2.1    The Customer must provide LSS and its employees, agents and sub-contractors with reasonable, uninterrupted, exclusive access to the site for the purposes of enabling LSS to meet its obligations in providing the Customer the Goods and Services.

2.2    The Customer must ensure that the site is clear, level, prepared and obstruction free.

 

  1. Delivery
    • LSS will use its reasonable endeavours to deliver the Goods and supply the Services by the date agreed by LSS in writing with the Customer but is not liable for any delays in delivery caused by matters beyond its reasonable control.

 

  1. Acceptance
    • The Customer is deemed to have accepted the Goods on delivery and to have accepted that the Goods are satisfactory if they do not advise LSS in writing of any fault in the Goods within forty eight hour of delivery

 

  1. Risk and Title
    • Risk of loss, theft, damage, deterioration or destruction of the Goods passes to the Customer upon the earlier of:
      • the delivery of the Goods to the address nominated by the Customer;
      • the taking of possession by the Customer or its nominee; and
      • the delivery to any carrier contracted by the Customer for delivery.
    • Property in the Goods supplied to the Customer does not pass to the Customer until all monies due and payable to LSS by the Customer have been paid in full.
    • Where Goods are supplied to the Customer without receipt of payment in full of all monies payable, the Customer:
      • Is a bailee of the Goods until property in them passes to the Customer;
      • Irrevocably appoint LSS to do all acts and things necessary to ensure the retention of title to Goods including the registration of a charge or charges in favour of LSS with respect to the Goods  under applicable state legislation or Commonwealth corporations law;
      • Must be able upon demand by LSS to separate and identify as belonging to LSS Goods supplied by LSS from other Goods  held by the Customer;
      • Must not allow any person to have or acquire any security interest in the Goods.

 

  1. Warranties
    • LSS acknowledges that both Goods and Services are considered “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010) and certain statutory express and implied guarantees and warranties will be implied into this Agreement (“Non- Excluded Guarantees).
    • LSS acknowledges that nothing in this Agreement purports to modify or exclude the Non-Excluded Guarantees.
    • In addition to the Non-Excluded Guarantees, LSS hereby agrees that the Goods /Services will be provided:
      • Diligently, competently and in a professional manner; and
      • In accordance with applicable laws.

 

 

  1. Obligations
    • The Customer is responsible to:
      • Ensure there is suitable power at the site as well as suitable subsoil;
      • Provide site bins, site toilets as well as temporary fencing as required;
      • Ensure that the site has a minimum three (3) metre perimeter for scissor/boom lift access and is responsible for arranging footing concrete if this is required and is excluded from the scope of works of the installation company;
      • booking and scheduling the installation company to complete building installation;
      • Ensure that the site complies with Worksafe and Department of Health Regulations.
      • Cover any additional costs for engineering certificates, if required;
    • If site conditions aren’t suitable, additional costs may apply. Any additional concrete/machinery required due to site fill, rock or other obstructions, may be charged to the Customer.

 

  1. Payment Terms
    • LSS shall provide tax invoices to the Customer, as detailed in the Purchase Order, which detail monies owing pursuant to the Agreement.
    • LSS may provide the following tax invoices to the Customer:
      • a tax invoice representing 10% of the Fee (“the Deposit”) upon entering into the Agreement, which is to be paid by the Customer within seven (7) of receipt, unless otherwise agrees between the parties in writing; In the event that the Customer cannot proceed with the Purchase order due to not obtaining the required approvals, LSS will refund the Deposit, less any costs already incurred by LSS.
      • A tax invoice comprising 40% of the Fee upon commencement of production of the goods by LSS, which is to be paid seven (7) days of receipt.
      • A further tax invoice for the balance of the Fee (“Final Invoice”) at least 14 days prior to the confirmed delivery date of the Goods and Services; The Final Invoice is to be paid by the Customer at least seven days prior to the delivery date;
    • In the event that the Customer fails to make payment in accordance with this clause 8, LSS may at its absolute discretion:
      • delay delivery of the Goods and Services;
      • charge interest on overdue accounts at the rate fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 plus four (4) percent per annum, calculated from the due date for payment to and including the day on which the unpaid money is paid in full;
    • The Customer will be liable for all additional costs and expenses incurred by LSS in recovery of any debts owed on a full indemnity basis.
    • LSS may, in its absolute discretion, also charge the Customer a storage fee in the amount of $50 plus GST per day (“Holding Fee”) in the event that the Customer notifies LSS less than two (2) business days prior to the confirmed delivery date that Goods cannot be received by the Customer on the confirmed delivery date.

 

  1. Termination
    • LSS may terminate this Agreement and repossess the Goods if:
      • The Customer fails to pay any charges due within fourteen (14) days of the due date; or
      • If the Customer should become or is made insolvent or bankrupt or makes any arrangement or composition with its creditor or should any order be made or resolution passed for its winding up.
      • If the Customer commits a breach of these Terms.
    • For the purposes of repossessing the Goods, LSS may enter into or upon any premises where the Goods may be, to recover the Goods from the Customer, without prejudice to the rights of LSS and recover from the Customer in respect of any claims, damages prior expenses arising out of any action taken under this clause.

 

  1. Guarantee
    • If the Customer is a company, the director(s) of the company may be required to provide personal guarantees at the absolute discretion of LSS.
    • In consideration for LSS agreeing at the Guarantor’s request to supply Services to the Customer, the Guarantor agrees with LSS as follows:
      • To guarantee and to be answerable and responsible to LSS for the due and proper payment of all monies that are or may at any time after this date become due and payable by the Customer;
      • To keep LSS indemnified from and against all losses, costs, charges and expenses which LSS may suffer or incur because of any breach of this Agreement by the Customer;
      • This is a continuing guarantee to LSS for all debts contracted by the Customer with LSS and will not be affected or discharged by the receivership, official management, liquidation, bankruptcy or death of the Customer or any disclaimer by a liquidator or trustee of the Customer or the death of a Guarantor and the Guarantor must not compete with LSS for any dividend or distribution in any winding up, bankruptcy, scheme of arrangement or similar of the Customer.
    • LSS may treat the Guarantor as though the Guarantor was jointly and severally liable with the Customer to LSS instead of being merely a surety.

 

  1. Limitation of Liability
    • LSS is not liable to the Customer for any indirect or consequential damages or loss of profits, revenue or data arising out of or in relation to the supply by LSS of the Goods or Services, even in the event that LSS should have been aware of the possibility of such loss or damage and whether damages are claimed in contract, tort or statute.
    • Except in relation to liability for personal injury or damage to tangible property, LSS’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Goods and/or Services or in respect of a failure or omission on the part of LSS to comply with its obligations is, in aggregate, limited to an amount equal to the Fee paid by the Customer to LSS.

 

  1. Notices

Any notice necessary or required to be given in accordance with this Agreement may be delivered by hand, sent via email or sent by pre-paid post to the person to whom it is necessary or required to be given at the address appearing in the premises to this Agreement or where written notice of a new address has been provided, to that new address.

 

  1. No Waiver

At any time or other indulgence granted by LSS to the Customer or any variation of the Terms or any judgement or order obtain by LSS against the Customer will not in any way amount to a waiver of any of the rights or remedies of LSS in relation to this Agreement.

 

  1. Severability

If a court, arbitrator, tribunal or other competent authority determines that a word, phrase, sentence, paragraph or clause of this Agreement is unenforceable, illegal or void then it must be severed and the other provisions of this Agreement will remain operative.

 

  1. Further Assurance

Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give effect to the Agreement.

 

  1. Force Majeure
    • Neither party is liable for delay or failure to perform any of its obligations under this Agreement to the extent that the performance of such obligation is prevented by a force majeure event.
    • Each party shall notify the other party of the occurrence of such a force majeure event and shall use all reasonable endeavours to continue to perform its obligations hereunder for the duration of such force majeure event. However, if any such force majeure event prevents the party from performing all of its obligations hereunder for two (2) weeks, the other party may terminate the Agreement by notice in writing.
    • For the purpose of the Agreement, a force majeure event means any event which is beyond the reasonable control of the party and prevents performance, provided that lack of funds shall not constitute a force majeure event, and shall include but not be limited to riots, acts of war, acts of Government, acts of terrorism, industrial disputes (not being an industrial dispute only affecting workforce of the party claiming force majeure, epidemics, fire, power failure, acts of God, weather conditions. Mechanical problems with trucks or natural disasters.

 

  1. Indemnity

The Customer must continually indemnify LSS from and against all or any losses, damages, claims, actions, suits, proceedings, demands, costs and expenses incurred by LSS whether direct or indirect arising out of a claim by a third party in relation to the Services and against any loss (including legal costs and expenses on an indemnity basis) caused by:

  1. A breach by the Customer of its obligations under this Agreement; or
  2. Any wilful, unlawful or negligent act or omission by the Customer.

 

  1. Entire Understanding

The Agreement comprising these Terms and the Purchase Order is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.

 

  1. Variation

The Agreement may only be amended or supplemented if agreement is reached by the parties and evidenced in writing.

 

 

  1. Mediation and Disputes
    • The parties must attempt to resolve any dispute by the mediation procedure. The procedure is:
      • Either party may start mediation by serving a mediation notice on the other.
      • The notice must state that a dispute has arisen and identify what is in dispute.
      • The parties must jointly appoint a mediator. If the parties fail to agree on the appointment within 14 days of service of the notice, a mediator will be appointed by the president of the Law Institute of Victoria upon application by either party.
      • The parties must observe the instructions of the mediation about the conduct of the mediation.
    • If the dispute is not resolved in 20 days after the mediator is appointed, or any other time that the parties agree to in writing, the mediation ceases.
    • Each party must pay an equal share of the costs of the mediation to the mediator.
    • If the dispute is resolved, each party must sign the terms of the agreement and the term are binding on the parties and override the terms of this contract if there is any conflict.
    • The mediation procedure is confidential and:
      • Written statements prepared for the mediator or for a party, and
      • Any discussion between the parties and between the parties and the mediator before or during the mediation procedure cannot be used in any legal proceedings.

 

  1. Authority to bind

The person entering into this Agreement warrants to LSS that they are duly authorized to do so on behalf of the Customer and:

  1. In the case of a corporation, is a director with authority to bind the Customer; and
  2. In the case of a trustee of a trust he or she has the authority to bind the trust and warrants that there is a right of indemnity by the Customer out of the assets of the trust under the trust.

 

  1. Governing Law and Jurisdiction

The Agreement is governed by Victorian law and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria in relation to this Agreement.

 

  1. Privacy

23.1 The Customer is agreeable to LSS obtaining from a credit-reporting agency, a credit report containing personal credit information about the Customer in relation to credit information about the Customer regarding credit provided by LSS.

23.2  The Customer agrees that LSS may exchange information about the Customer with credit reporting agencies for the following purposes:

23.2.1      to assess an application by the Customer

23.2.2      to notify other credit providers of a default by the Customer;

23.2.3      to exchange information with other credit providers as to the status of the credit account, where the Customer is in default with other credit providers;

2.2.4        to assess the credit worthiness of Customer and/or Guarantor/s;

23.2.5      and the Customer being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

23.3  The Customer agrees that personal data provided may be used and retained by LSS for the following purposes and for other purposes as shall be agreed between the Customer and LSS or required by law from time to time:

23.3.1      for the provision of Goods ; analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods ;

23.3.2      processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer;

23.3.3      enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods .

23.4  The Customer acknowledges that LSS may give information about the Customer to a credit reporting agency for the following purposes:

23.4.1      to obtain a consumer credit report about the Customer; and/or

23.4.2      to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

 

  1. Personal Property Securities Act

24.1 For the purposes of this clause the terms used in this clause have the same meaning as contained in the PPSA.

24.2  If LSS determines that any Agreement is or contains a security interest for the purposes of the PPSA, the Customer must, at its own cost and immediately upon LSS’s request do all things reasonably required (including execution of documents) to ensure LSS has a continuously perfected security interest (as defined in the PPSA) created in the Goods pursuant to any Agreement. This includes, but is not limited to:

24.2.1      providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the requirements of the PPS legislation;

24.2.2      enabling LSS to apply for registration of or give any notification in relation to the security interest;

24.2.3      enabling LSS to exercise rights in relation to the security interest;

24.2.4      procure from any person considered by LSS to be relevant to its security position, such agreements and waivers as LSS may at any time require to ensure LSS attains the highest ranking security possible in respect of the security interest.

24.3  In circumstances where Agreement constitutes a PPS Lease, LSS acknowledges that it is the grantor and LSS is the secured party holder of a Purchase Money Security Interest (“PMSI”) by virtue of the Hire Agreement and the PPSA.

24.4  The Customer must not, except with LSS’s express written consent, allow to be, or be liable to become, perfected or attached in favour of any person, a security interest in any of the Goods, and whether to a provider of new value or otherwise.

24.5  Where permitted by the PPSA, the Customer waives any right to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

24.7  To the extent permitted by the PPSA: the provision of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on LSS will apply only to the extent that they are mandatory or LSS agrees to their application in writing; where LSS has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

24.8  For the purposes of section 275(6) of the PPSA, the parties agree and undertake that the Agreement and any information pertaining to the rental of the Goods and details of the Goods shall be kept confidential at all times.

24.9  Neither party may disclosure any information pertaining to the Agreement or the rental of the Goods, except as otherwise required by law or that is already in the public domain. The Customer hereby consents and appoints LSS to be an interested person and the Customer’s authorised representative for the purposes of section 275(9) of the PPSA.

 

 

 

 

 

 

 

 

 

 

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