Leave it To Luke – Terms of Trade

1. Definitions

In these conditions unless the context otherwise requires:

  • “Company” means Leave It To Luke Pty Ltd trading as Leave It To Luke (“LITL”).
  • “Client” means the person, or company buying the Services from LITL.
  • “Contract” means any accepted Quotation, agreement, arrangement, agreement or contract between LITL and the Client for the purchase of the Services including but not limited to any proposal or content of a quotation, tender document, job sheets, order, specifications, project scope, quote, acceptance, verbal agreement or order.
  • Date of the Contract – means where the Contract arises from a quotation given by LITL, (i) the date of acceptance of the order by the Client by phone, email correspondence or signature of a purchase order or (ii) the date upon which the Client orders the Services.
  • “Contract Price” means the price of the Services contained in any Contract.
  • “Person” includes a corporation, association, firm, company, partnership or individual.
  • “Quotation” means any quotation supplied by LITL and which is valid for 14 days only.
  • “Services” means services or products supplied by LITL.
  • “Manager” means any person appointed or appearing as decision maker
  • “PPS Law” means:

(a)   the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and

(b)   any amendment made at any time to any other legislation as a consequence of a PPS Law.

2. Acceptance

2.1     These terms and conditions constitute the Terms of Trade agreed between the parties and should be read in association with and additional to any Contract.  Any Contract includes these Terms of Trade which are supplied by LITL to the Client from time to time and/or published by LITL on its website.  If any instruction is received by LITL from the Client to obtain the supply of Services, it constitutes acceptance by the Client of the terms and conditions contained herein and the Contract.

2.2     LITL reserves the right to amend any Quotation before it has been accepted to take into account any rise or fall in the cost of completing the provision of Services. LITL will notify the Client of any amendment as soon as practicable, at which point the amended Quotation will be the quotation for the purposes of these Terms of Trade.  Notwithstanding the provision of a Quotation, LITL may refuse to provide the Services at any time.

2.3     An indication in a Quotation of the time frame for the provision of the Services is an estimate only and is not a fixed time frame.

2.4     LITL may in its absolute discretion refuse to provide Services including but not limited to where:

(i)       Services are unavailable for any reason whatsoever;

(ii)       credit limits cannot be agreed upon or have been exceeded; or

(iii)      payment for the Services previously provided to the Client or any related corporation of the Client or to any other party who is, in the reasonable opinion of LITL, associated with the Client under the same or another Contract, has not been received by LITL; or

(iv)     the Services cannot be supplied on a profitable basis by LITL.

2.5     Any Contract may be terminated buy the giving of 14 days notice.

2.6     The Client authorises LITL to charge to any credit card supplied to LITL, for the purposes of the provision of the Services and compliance with these terms, including moneys due under the Contract and moneys forfeited due to cancellation.

2.7     Where specific terms are included in any Contract and they are inconsistent with these Terms of Trade, then the terms in the Contract prevail over these Terms of Trade.

2.8     Any Quotation is valid for a period of 90 days.

2.11   Where pressure cleaning forms part of the Services, it is agreed that there is no guarantee of the end results of such pressure cleaning.

2.12   LITL may use sub-contractors for the purpose of providing the Services.

2.13   A cancellation fee of 50% of the price for the Services is payable where the Client cancels the Services within 24 hours of the expected delivery of the Services.

3. Terms and Conditions

3.1     LITL may update these Terms of Trade at any time.

3.2     These Terms of Trade and any subsequent terms or conditions issued by LITL apply to all Contracts and orders for the Services made by the Client after the date and time at which these Terms of Trade are provided to the Client or published by LITL on its website. It is the Client’s responsibility to ensure that these Terms of Trade are promptly brought to the attention of the appropriate staff of the Client, and accordingly any order made by the Client after the date and time described above in this clause shall be deemed to be an acceptance of these Terms of Trade.

3.3     These Terms of Trade and any Quotations and Contracts and written variations of any of them agreed to in writing by LITL represent the whole agreement between the parties relating to the subject matter of the provision of the Services.

3.4     These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

3.5     In entering into these Terms of Trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by LITL or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.

3.6     The scope of works is set out in the Contract.  Further fees may be payable where conditions make the works more time consuming (for example, during high growth seasons, untidy or unclear workspaces or heavy leaf drop).

3.7     Any provisions in a Contract which are inconsistent with these Terms of Trade supercede these Terms of Trade.

3.9     LITL may leave any site if there is any bullying, harassment or an unsafe work environment and payment for the Services is still required in full.

4. Price

  • The Contract Price is as provided in the Contract or the Quotation and subsequent invoices provided by LITL to the Client in respect of Products or Services supplied.
  • Time for payment for the Services shall be of the essence and is as stated in any Contract. The earliest time for payment in these Terms of Trade or the Contract will apply.
  • Unless otherwise stated in any other documentation, payment for the Contract Price must be made as follows:

On the earlier of the day of delivery of the Services or 14 days from invoice or as further set out in the Contract and/or associated documents if a different payment term is stated.

4.4     Additional work for components over and above the scope of work will be charged as agreed from time to time including where work is requested on the day of the provision of the Services.

4.5     Variation to any scope of work will mean a reassessment of the Contract Price.

4.6     Any timing counts only after the Client has provided all resources required for the delivery of the Services.

4.7     A deposit may be required at the option of LITL for any Services over the value of $500.

5. Payment, Late Payment, Default of Payment and Consequences of Default of Payment

  • The method of payment is by credit card or bank transfer or other method as advised by LITL.
  • Late payment will, at the option of LITL, incur interest at the rate of 8% per annum calculated on a daily basis. This is payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by LITL, but without prejudice to LITL’s other rights or remedies in respect of the Client’s default in failing to make payment on the due date.
  • LITL may charge for any collection related costs in addition to the interest provided for herein.
  • Without prejudice to any other remedies LITL may have, if at any time the Client is in breach of any obligation (including those relating to payment), LITL may suspend or terminate the supply of the Services to the Client and suspend or terminate any of its other obligations under these Terms of Trade. LITL will not be liable to the Client for any loss or damage the Client suffers because LITL exercised its rights under this clause.
  • All costs incurred by LITL in recovery of any outstanding debt will be payable in full by the Client.
  • LITL may in its complete discretion apply any payment received from the Client to any amount owing by the Client to LITL.
  • The Client is not entitled to retain any money owing to LITL notwithstanding any default or alleged default by LITL of these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Services to an inadequate standard or a delay in the provision of Services.
  • Nothing in this paragraph affects the Client’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
  • In the event that:
    1. any money payable to LITL becomes overdue, or in LITL’s opinion the Client will be unable to meet its payments as they fall due; or
    2. 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 creditors; or
    3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client;

then without prejudice to LITL’s other remedies at law, LITL is entitled to cancel all or any part of any Contract with a Client that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to LITL shall, whether or not due for payment, immediately become payable.

5.9     If the Client has (i) has not or cannot provide reasonable access to the property for removal (ii) makes the provision of the Services more complex, time consuming or difficult or (iii) cannot provide parking near to the property for collection, then LITL may (a) refuse to provide the Services and/or (b) charge extra hourly rates for the provision of extra services at the rate set out in any communication to the Client or where no such communication has been made then at $165 per half hour, or part thereof, of delay.  The Client authorises LITL to charge any credit card with such extra payment.

5.10   If the Client has more property for removal than as quoted for, then the Client agrees to pay for such extra property in addition to the agreed price.

6. Governing laws

6.1     These Terms of Trade will be interpreted in accordance with applicable government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the Products or Services or these Terms of Trade.

6.2     These Terms of Trade are governed by the laws of the State of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such State.

7. Dispute resolution

7.1     If a dispute arises between the Client and LITL, the following procedure applies:

(i)       A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.

(ii)      A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.

(iii)     A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

7.2     If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).

7.3    Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these Terms of Trade.

7.4     Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms of Trade.

7.5     The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

8. Reservation of Title and Risk

8.1     Risk in any property remains with the Client.

8.2     Where products are supplied by LITL to the Client without payment in full of all moneys payable in respect of the products provided by LITL in respect of those products, the Client:

(i)       is a bailee of the products until property in them passes to the Client;

(ii)      irrevocably appoints LITL its attorney to do all acts and things necessary to ensure the retention of title to products including the registration of any security interest in favour of LITL with respect to the products under applicable law;

(iii)     must be able upon demand by LITL to separate and identify as belonging to LITL products supplied by LITL from other products which are held by the Client;

(iv)     must not allow any person to have or acquire any security interest in the products;

(v)      agrees that LITL may repossess the products if payment is not made within 14 days (or such longer time as LITL may, in its complete discretion, approve in writing) of the supply of the products; and

(vi)     the Client grants an irrevocable licence to LITL or its agent to enter the Client’s premises in order to recover possession of products pursuant to this paragraph. The Client indemnifies LITL in respect of any damage to property or personal injury which occurs as a result of LITL entering the Client’s premises.

8.4     Where products are supplied by LITL to the Client without payment in full of all moneys payable in respect of the products provided by LITL in respect of those products, and the Client makes a new object from the products, whether finished or not, or the Client mixes the products with other products or the products become part of other products (New Products), the Client agrees with LITL that the ownership of the new products immediately passes to LITL. The Client will hold the new products on trust for LITL until payment of all sums owing to LITL whether under these Terms of Trade or any other contract have been made and LITL may require the Client to store the new products in a manner that clearly shows the ownership of LITL.

8.5     For the avoidance of doubt, under paragraph (d), the ownership of the new products passes to LITL at the beginning of the operation or event by which the products are converted into, are mixed with or become part of other products.

8.6     Notwithstanding paragraph (c) the Client may transfer, sell or dispose of products, including new products, to a third party in the ordinary course of business provided that:

(i)       where the Client is paid by a third party in respect of products including new products, the Client holds the whole of the proceeds of sale less any GST on trust for LITL – in a separate account – until all amounts owned by the Client to LITL have been paid; or

(ii)      where the Client is not paid by a third party, the Client agrees to assign all of its rights against the third party to LITL upon LITL giving the Client notice in writing to that effect and for the purpose of giving effect to that assignment the Client irrevocably appoints LITL as its attorney.

9.7     Where products are supplied by LITL to the Client without payment in full of all moneys payable in respect of the Products and any Services provided by LITL in respect of those products, the Client acknowledges that LITL has a right to register and perfect a personal property security interest.

8.8     If:

(i)       a PPS Law applies or commences to apply to these Terms of Trade or any transaction contemplated by them, or LITL determines (based on legal advice) that this is the case; and

(ii)      in LITL’s opinion, the PPS Law:

(A)     does or will adversely affect LITL’s security position or obligations; or

(B)     enables or would enable LITL’s security position to be improved without adversely affecting the Client, THEN –

LITL may give notice to the Client requiring the Client to do anything (including amending these Terms of Trade or execute any new Terms and Conditions) that in LITL’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph (ii)(A) or improve the security position as contemplated in paragraph (ii)(B). The Client must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in LITL’s opinion LITLs security position or obligations under or in connection with these Terms of Trade have been or will be materially adversely affected, LITL may by further notice to the Client cancel these Terms of Trade, in which case the Client must pay to LITL any money owed to LITL by the Client immediately.

8.9     In this clause financing statement, financing charge statement, security agreement and security interest has the meaning given to it by the PPSA.

8.10   The Client agrees that these Terms of Trade constitute a security agreement for the purposes of the PPSA and creates a security interest in a product supplied or to be supplied by LITL.

8.11   The Client agrees to sign any documents or provide any further information to enable LITL to register a financing statement or financing change statement, or any other document under the PPSA.

8.12   The Client agrees to cover CP & E’s cost of any registration or release under the PPSA.

8.13   The Client may not enter into security arrangements for the products to third parties, including but not limited to the PPSA.

8.14   The Client waives their rights to obtain notices under sections 95, 188, 121 130 and 132 of the PPSA and agrees that sections 96, 115 and125 of the PPSA do not apply to the Contract.  The Client waives all rights under Sections 142, 143 and 157 of the PPSA.

9. Warranty

9.1     LITL will repair or make good any defects in the Services, if written notice of the claim is received by LITL within 24 hours from the date the Services were delivered.

9.2     No claim shall be accepted under such warranty if any attempt to repair the defective Services is made by any person not authorised by LITL, or if the defective Services have been modified or incorrectly stored, maintained or used.

9.3    LITL’s liability is limited to the Non-Excluded Guarantees contained in State and Commonwealth law.

10. Liability

10.1   LITL shall not be liable for any loss of any kind whatsoever suffered by the Client as a result of any breach of any of LITLs obligations under the Contract, including any cancellation of the Contract or any negligence on the part of LITL, its servants, agents or contractors, nor shall LITL be liable for any loss, damage or injury caused to the Client’s servants, agents, contractors, Clients, visitors, tenants, trespassers or other persons where the loss is caused by the Client’s negligence, error, omission or acts, including but not limited to existing or installed electricity supply and existing o installed electrical services.

10.2   The Client indemnifies and keeps indemnified LITL, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against LITL or, for which LITL is liable, in connection with any loss arising from or incidental to the provision of Products or Services, including in the circumstances referred to in paragraph 10.1.

10.3   The Client and LITL agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

12. Exclusions and limitation of liability

11.1   The Client expressly agrees that use of the Services is at the Client’s risk. To the full extent allowed by law, LITLs liability for breach of any term implied into these Terms of Trade by any law is excluded.

11.2   All information, specifications and samples provided by LITL in relation to the Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Client’s use of the Services will not entitle the Client to reject the Products upon delivery, or to make any claim in respect of them.

11.3   LITL gives no warranty in relation to the Services provided or supplied. Under no circumstances is LITL or any of its suppliers liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

(i)  any Services supplied to the Client;

(ii)  any delay in supply of the Services; or

(iii)  any failure to supply the Services.

11.4   Any advice, recommendation, information, assistance or service given by LITL in relation to Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. LITL does not accept any liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance or service.

11.5   To the fullest extent permissible at law, LITL is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Services, or otherwise arising out of the provision of the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if LITL has been advised of the possibility of damages.

11.7   The Australian Consumer Law may give to the Client certain guarantees. Where liability for breach of any such guarantee can be limited, LITLs liability (if any) arising from any breach of those guarantees is limited with respect to the supply of products, to the replacement or repair of the products or the costs of resupply or replacement of the products or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

12. Force majeure

­­­­­­­­­­­­­­­­­­­­12.1   If circumstances beyond LITL’s control prevent or hinder its provision of the Services, LITL is free from any obligation to provide the Services while those circumstances continue. LITL may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

12.2  Circumstances beyond LITL’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

13. Confidentiality and Privacy

13.1   All parties will keep these terms and conditions and all correspondence and communication between them as confidential and private, excepting for obtaining accounting and legal advice and for compliance purposes.